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2012 DIGILAW 671 (RAJ)

Surya Prakash v. Sushila Devi

2012-03-19

ALOK SHARMA

body2012
JUDGMENT 1. - This petition has been filed impugning the judgment dated 18.10.2011 passed by the Board of Revenue, where under the respondent-plaintiff (hereinafter "the plaintiff") Sushila Devi's appeal under Section 224 of the Rajasthan Tenancy Act has come to be allowed, setting aside the order dated 19.11.2009 passed by the Revenue Appellate Authority and restoring the judgment and decree dated 6.07.2009 passed by the Sub-Divisional Officer, Dudu, District Jaipur, whereby the suit of plaintiff Sushila Devi having been decreed, it was declared that the plaintiff Sushila Devi was half owner/khatedar of lands falling in Khatoni Nos. 292, 293 and 778 till then standing in the name of petitioner-defendant (hereinafter "the defendant") Surya Prakash. 2. The facts of the case are that one Chauthmal had khatedari rights to an extent of ⅕th in the agricultural lands covered under Khatoni No. 292 ad measuring 35 bighas 13 biswas, Khatoni No. 293 ad measuring 10 biswas and Khatoni No. 778 ad measuring 14 bighas 19 biswas, all situate in village Dudu, district Jaipur. The plaintiff Sushila Devi was his natural daughter and the defendant, his adopted son. Following Chauthmal's death the agricultural lands falling in the share of Chauthmal came to be recorded in the name of the defendant Surya Prakash. The plaintiff Sushila Devi's case was that till about the year 1999 she continued to receive fair share of the produce of the aforesaid agricultural lands but on or about 14.7.1999 the defendant Surya Prakash refused to allow Sushila Devi, the plaintiff to have her name entered in the revenue records as successor to the estate of Chauthmal in equal measure with him. This refusal occasioned laying of a suit for declaration and permanent injunction by the plaintiff Sushila Devi against the defendant Surya Prakash before the Court of Sub-Divisional Officer, Dudu where under the plaintiff inter alia sought a declaration that she was half owner of the properties of her father to which Surya Prakash the defendant was claiming exclusive ownership. 3. The Sub-Divisional Officer, Dudu in view of the absence of Surya Prakash in spite of service in the suit laid by Sushila Devi decreed the suit ex-parte as prayed on 24.9.1999. 3. The Sub-Divisional Officer, Dudu in view of the absence of Surya Prakash in spite of service in the suit laid by Sushila Devi decreed the suit ex-parte as prayed on 24.9.1999. On proceedings taken by Surya Prakash, petitioner under Order 9 Rule 13 CPC the ex-parte judgment and decree dated 24.9.1999 was set aside on or about 25.5.2006 and the matter remanded to the Sub-Divisional Officer, Dudu to be adjudicated after providing opportunity of filing the written statement and setting up defence to the suit as laid by Sushila Devi. A written statement at the instance of Surya Prakash came to be filed on or about 4.07.2006. In the said written statement, Surya Prakash denied the whole case set up by Sushila Devi and stated that the agricultural lands in his Khatoni Nos. 292, 293 and 778 were not ancestral but self acquired. It was stated that in fact Chauthmal was not entitled to any succession to the property of Ram Vilash, his father as he was given away by Ram Vilash in adoption. It was further submitted that Surya Prakash the defendant in the suit had not inherited any land from Chauthmal, consequent to which the plaintiff Sushila Devi's claim to half share of Chauthmal's property was absolutely unsustainable. It was further stated that the property in the name of the defendant Surya Prakash, specially in respect of Khatoni No. 778 had come to his share in pursuance to the judgment and decree dated 24.11.1985 in a revenue suit bearing No. 236/1985 before the Assistant Collector, Sawai-Madhopur. The Sub-Divisional Office, Dudu framed 7 issues on the pleadings of the parties and on consideration of the documentary and oral evidence, came to a conclusion that the petitioner Surya Prakash the defendant in the suit had come into agricultural land falling in Khatoni Nos. 292, 293 and 778 as successor of the deceased Chauthmal, his adoptive father. It was found that the defendant's reliance on a purported adoption deed (whereby Chauthmal was stated to have gone in adoption and thus was allegedly no longer a member of the family of Ram Vilash and not entitled to any estates of Ram Vilash on the basis of the adoption deed, the original khatedari allegedly executed 70 years ago) was absolutely unreliable as neither the adoption deed was registered nor proved by any other evidence of any probative worth. The Sub-Divisional Officer came to a finding that DW 4 Satya Prakash who sought to prove the alleged giving away of Chauthmal by his father Ram Vilash about 70 years ago was in fact about 52 years of age and thus his evidence useless. The Sub-Divisional Officer also held that the case of the defendant that Chauthmal had sold his property to Dinesh Dutt for a sum of Rs. 5000/- and was also otherwise thus denuded of his ownership with the consequence of no right inhering in his property (thus non existent) in the plaintiff Sushila Devi as his natural daughter, was also not of any probative worth inasmuch as the alleged sale by Chauthmal of immovable property for a sum of Rs. 5000/- by Chauthmal on 8.6.1968 was neither stamped nor registered and was thus inadmissible in evidence. The trial Court thus concluded that the fact both of the alleged giving away of Chauthmal in adoption by Ram Vilash or of the sale of his entire estate by Chauthmal for sum of Rs. 5000/- on 8.6.1968 was not proved by Surya Prakash defendant in the suit. The trial Court further recorded the fact that even otherwise the defendant Surya Prakash could not set up a case of Chauthmal not having any right in the agricultural lands comprised in Khatoni Nos. 292, 293 and 778 as son of Ram Vilash as Surya Prakash had himself succeeded to the immovable property in issue in the suit as the son and successor of Chauthmal, his adoptive father. The trial Court also negative the case of the defendant Surya Prakash that he had succeeded to the lands covered under Khatoni No. 778 on the basis of a decree dated 24.11.1984 in revenue suit No. 236/85 by the Assistant Collector, Sawai Madhopur on the ground that the said suit was a partition suit laid by Surya Prakash as the successor of Chauthmal and the defendants therein were all descendants of the original khatedar Ram Vilash. In these circumstances, it was established before the Court that even the lands covered in Khatoni No. 778 came to the defendant as the adopted son of Chauthmal. In these circumstances, it was established before the Court that even the lands covered in Khatoni No. 778 came to the defendant as the adopted son of Chauthmal. In view of the aforesaid findings the Sub-Divisional Officer, Dudu vide his judgment and decree dated 6.7.2009 decreed the suit of plaintiff Sushila Devi and directed that she be given half share in the agricultural lands standing to the name of the petitioner Surya Prakash in Khatoni Nos. 292, 293 and 778. 4. The judgment and decree passed by the Sub-Divisional Officer, Dudu was however set aside in appeal by the Revenue Appellate Authority, Jaipur vide its judgment dated 19.11.2009, wherein it was held that Sushila Devi had not been able to establish that the property in respect of which she had sought a declaration and permanent injunction was the ancestral property of her natural father Chauthmal. 5. Aggrieved of the order dated 19.11.2009 passed by the Revenue Appellate Authority, the plaintiff Sushila Devi laid a second appeal before the Board of Revenue. On consideration of the matter, vide judgment dated 18.10.2011 the Board of Revenue set aside the judgment dated 19.11.2009 passed by the Revenue Appellate Authority and restored the judgment and decree dated 6.07.2009 passed by the Sub-Divisional Officer, Dudu. Hence the present petition. 6. I have heard counsel for the petitioner-defendant and perused the impugned order as also the writ petition and the ground agitated in support thereof. 7. Counsel for the petitioner has re-agitated the case as before the Sub-Divisional Officer, the Revenue Appellate Authority and the Board of Revenue and required this Court to interfere with the findings of fact recorded by the Sub-Divisional Officer as upheld by the Board of Revenue that the lands in the khatedari of Surya Prakash came into his ownership consequent to Surya Prakash succeeding to the rights in the immovable property of his adoptive father Chauthmal. 8. I am afraid that the argument of the counsel for the petitioner is not an argument which can be considered in a writ proceedings under Articles 226 and 227 of the Constitution of India as the petitioner-defendant has not been able to point out any perversity in the findings of the Sub-Divisional Officer, Dudu as upheld by the Board of Revenue. From the record of the petition it is quite apparent that all agricultural lands standing to the name of the petitioner defendant Surya Prakash in Khatoni Nos. 292, 293 and 778 were a consequence of Surya Prakash succeeding thereto as adopted son of Chauthmal. In fact, in revenue suit No. 236/85 before the Assistant Collector, Sawai-Madhopur decided on 24.12.1985 the case of Surya Prakash as found by the Sub-Divisional Officer was a case for partition in which he as the adopted son of Chauthmal S/o Ram Vilash had sought a decree of partition against the other descendants of the erstwhile khatedar Ram Wash. Further, it is on record that qua Jamabandies for the period 2036 to 2039, in respect of Khatoni Nos. 292 and 293 the petitioner-defendant Surya Prakash had succeeded to ⅕th share of late Chauthmal in the estate of Ram Vilash by way of mutation No. 1404. Thus, in respect of agricultural lands falling in Khatoni Nos. 292, 293 and 778 the petitioner Surya Prakash had come into ownership as the adopted son of late Chauthmal. In these circumstances, it was not possible for Chauthmal to set up a contrary case in defence to a suit laid before the Sub-Divisional Officer, Dudu by the plaintiff Sushila Devi and claim in his defence that the agricultural lands in Khatoni Nos. 292, 293 and 778 were not the ancestral lands coming to him from his late father Chauthmal but they were self acquired property. Such a case set up by the petitioner-defendant Surya Prakash was hit by estoppel and the petitioner herein as defendant in the suit before the S.D.O. and appellant before the Revenue Appellate Authority was quite plainly probating and re-probating on the same facts. The defence taken by the petitioner-defendant Surya Prakash before the revenue Courts was thus a gross abuse of the judicial process, in this regard, a reference can be had to a judgment of the Hon'ble Supreme Court In Joint Action Committee of Airline Pilots' Association of India & Ors. v. Director General of Civil Aviation & Ors., reported in, (2011) 5 SCC 435 , wherein the Hon'ble Supreme Court relying on R.N. Gosain v. Yaspal Singh Dhir,, AIR 1993 SC 352 has reiterated the principle that the law does not permit a person to both approbate and reprobate. v. Director General of Civil Aviation & Ors., reported in, (2011) 5 SCC 435 , wherein the Hon'ble Supreme Court relying on R.N. Gosain v. Yaspal Singh Dhir,, AIR 1993 SC 352 has reiterated the principle that the law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that a person cannot say at one time that a transaction is valid and thereby obtain some advantage to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage. It has been held that this doctrine is a rule in equity and on that consideration a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had and taking inconsistent pleas by a party makes the conduct of such a party far from satisfactory. It has been held that the parties should not blow hot and cold by taking inconsistent stands and prolong proceedings unnecessarily. 9. Petitioner-defendant Surya Prakash having succeeded to the immovable property of Chauthmal as his adopted son could not have been allowed by the Revenue Appellate Authority to set up an inconsistent case and claim that the properties in issue which was the subject matter of the suit for declaration and injunction laid by Sushila Devi were his own self acquired properties. The petitioner-defendant had to stand by his earlier case (Revenue Suit No. 236/1985 decided on 24.11.1985 by the Assistant Collector, Sawai-Madhopur) that the property in Khatoni No. 778 was the ancestral property and further the entries in the revenue records where under he had succeeded to Chauthmal's share in the agricultural lands comprised in Khatoni Nos. 292 and 293 as his adopted son. 10. It is an admitted case between the parties that the plaintiff Sushila Devi was the natural born daughter of Chauthmal and consequently, in terms of Sections 8, 9 and 10 of the Hindu Succession Act, 1956 was entitled to equal share in the properties of late Chauthmal along with the petitioner-defendant Surya Prakash as his adopted son. 10. It is an admitted case between the parties that the plaintiff Sushila Devi was the natural born daughter of Chauthmal and consequently, in terms of Sections 8, 9 and 10 of the Hindu Succession Act, 1956 was entitled to equal share in the properties of late Chauthmal along with the petitioner-defendant Surya Prakash as his adopted son. Surya Prakash could not have appropriated all of the estates of Chauthmal to the exclusion of Sushila Devi. 11. The judgment and decree dated 6.07.2009 passed by the Sub-Divisional Officer, Dudu and the judgment upholding the same passed by the Board of Revenue on 18.10.2011 are thus liable to be upheld. 12. Consequently, I find no force in the petition. Dismissed as such. 13. The stay application also stands dismissed.Writ petition dismissed - Decree of revenue board upholding that of Sdo Sustained. *******