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2014 DIGILAW 280 (RAJ)

Krishna Pal Singh v. Board of Revenue

2014-01-28

SANGEET LODHA

body2014
JUDGMENT 1. - This writ petition is directed against order dated 30.9.13 of the Board of Revenue, Rajasthan, whereby a revision petition preferred by the petitioner against the order dated 12.4.02 passed by the Additional Divisional Commissioner, Ajmer declining to interfere with the order dated 27.6.01 passed by the Sub Divisional Officer (SDO), Parbatsar, cancelling the mutation of the disputed land made in favour of the petitioner and sanctioning the mutation thereof in favour of the respondent no. 3 herein, stands dismissed. 2. The relevant facts are that the land measuring 159.11 bighas comprising khasra no. 106, 109, 110 to 115, 118, 100 to 105, 91, 92, 20, 107, 108, 136 of village-Madhwa was khatedari land of late Shri Nahar Singh, who was survived by a daughter-Smt. Dariyav Kanwar. After the death of Shri Nahar Singh, the land was entered in the revenue record in the name of her daughter on 31.10.80. However, the Sarpanch, Gram Panchayat, Dhadhota proceeded to draw an order in the following terms: " Jh ukgjflag ,d lky igys Qksr gks pqdk gSA Qksr gksus okys ds rhu lxs HkkbZ gSaA D;k rhuksa HkkbZ;ksa esa ls nwljs gdnkj ugha gSa tcfd ftlds uke ukekUrj.k [kksyk x;k gS] og 'kknh 'kqnk gS mlds rhu cPps gSa\ mlds ifr dh lEifRr dk C;kSjk ekax dj Lohd`fr ds fy, vkxs is'k gksA Sd/- ljiap " 3. It is stated that a notice was issued to Dariyav Kanwar but she did not put in appearance and therefore, while proceedings ex-parte against her, the Sarpanch, Gram Panchayat, proceeded to pass an order regarding the succession of late Shri Nahar Singh. It was observed in the order that Ummaid Singh, the brother of Nahar Singh has stated that Krishnapai Singh, his brother's son, was adopted by Late Shri Nahar Singh. The statement made by Shri Ummaid Singh is said to have been confirmed by the persons present and accordingly, presuming Krishnapai Singh to be adopted son of Nahar Singh, vide order dated 23.8.81 passed by the Sarpanch, Gram Panchayat, Dhadhota, the land was directed to be mutated in the name of Krishnapai Singh, the petitioner herein. 4. The respondent-Dariyav Kanwar coming to know about the passing of the order sanctioning the mutation of the land in favour of the petitioner herein vide entry no. 4. The respondent-Dariyav Kanwar coming to know about the passing of the order sanctioning the mutation of the land in favour of the petitioner herein vide entry no. 76 dated 23.8.81 preferred an appeal before the SDO, Parbatsar under Section 75 of Rajasthan Land Revenue Act, 1956. 5. The Appellate Authority after due consideration of the material on 1 record, arrived at a categorical finding that there is nothing on record to show that Krishnapai Singh is the adopted son of Nahar Singh and therefore, after death of Nahar Singh, the land deserves to be entered in the name of Smt. Dariyav Kanwar, the only surviving legal heir of Nahar Singh. The Appellate 5 Authority observed that the mutation was sanctioned in favour of the petitioner herein without giving an opportunity of hearing to Smt. Dariyav Kanwar, the respondent no. 3 herein. Accordingly, the mutation effected in favour of the petitioner herein was ordered to be cancelled and the land was directed to be entered in the name of respondent no. 3 Smt. Dariyav Kanwar. 6. Aggrieved by the order dated 27.6.01 passed by the Appellate Authority, the petitioner herein preferred an appeal before Additional Divisional Commissioner, Ajmer which stood dismissed vide order dated 12.4.02. The Additional Divisional Commissioner after due examination of the record arrived at the finding that the order sanctioning the mutation in favour 15 of the petitioner was passed without giving an opportunity of hearing to respondent-Smt. Dariyav Kanwar. The finding arrived at by the SDO in terms that there was no evidence on record to suggest that the petitioner herein is adopted son of Nahar Singh, was also affirmed by the Additional Divisional Commissioner, Ajmer. 20 7. Aggrieved by the order dated 12.4.02 passed by the Additional Divisional Commissioner, the petitioner preferred a revision petition before the Board of Revenue, Rajasthan, which stands. dismissed by the order impugned. The Board of Revenue observed that the mutation is a fiscal proceeding which does not create any title or right. The Board further 2 observed that Smt. Dariyav Kanwar being the daughter of late Shri Nahar Singh, she is not required to seek any declaration of her rights in the land in question from any court. Accordingly, the Board of Revenue declined to interfere with the concurrent findings arrived at by the SDO and the Additional Divisional Commissioner, Ajmer. Hence, this petition. 3 8. Accordingly, the Board of Revenue declined to interfere with the concurrent findings arrived at by the SDO and the Additional Divisional Commissioner, Ajmer. Hence, this petition. 3 8. Learned counsel for the petitioner submitted that the mutation entry was questioned by the respondent-Dariyav Kanwar after lapse of 19 years and therefore, the Appellate Authority could not have directed correction of the mutation entry without determining the question of limitation. Learned counsel submitted that despite opportunity being granted, the : respondent-Dariyav Kanwar did not appear before the Gram Panchayat and therefore, the mutation made after verification the factum of adoption of petitioner from the persons present cannot be faulted with. Learned counsel submitted that the petitioner is in possession of the land throughout and had contested the ceiling proceedings initiated, as adopted son of late Shri Nahar Singh and therefore, the order passed by the Gram Panchayat entering the land in petitioner's name was not required to be interfered with, without declaration of right of Smt. Dariyav Kanwar therein by the court of competent jurisdiction. Accordingly, learned counsel submitted that the order impugned passed by the Board of Revenue, affirming the orders passed by the Appellate Authorities, deserves to be set aside. However, on being asked by this Court regarding the availability of any evidence showing that the petitioner herein is adopted son of late Shri Nahar Singh, the learned counsel fairly submitted that no documentary evidence in this regard was brought on record. 9. I have considered the submissions of the learned counsel and perused the material on record. 10. A bare perusal of the proceedings drawn by the Panchayat as noticed by the Board of Revenue in its order reveals that the proceeding for alteration in mutation made in favour of Smt. Dariyav Kanwar was initiated by the Sarpanch, Gram Panchayat, at the instance of the petitioner herein,without there being any basis for the same. There is nothing on record to suggest the respondent-Dariyav Kanwar was duly served and she was extended an opportunity of hearing before altering the mutation entry already made. The Board of Revenue and the Appellate Authorities have concurrently found that there was no evidence on record to suggest that the petitioner herein was adopted son of late Shri Nahar Singh and therefore, the mutation effected in the name of respondent no. The Board of Revenue and the Appellate Authorities have concurrently found that there was no evidence on record to suggest that the petitioner herein was adopted son of late Shri Nahar Singh and therefore, the mutation effected in the name of respondent no. 3 - Smt. Dariyav Kanwar, who is only surviving legal heir of late Shri Nahar Singh was not required to be interfered with. In the considered opinion of this Court, in absence of any proof regarding the petitioner's being adopted son of late Shri Nahar Singh, the land was rightly recorded in the name of the respondent no. 3- Smt. Dariyav Kanwar, the only surviving legal heir of late Shri Nahar Singh. As noticed by the Board of Revenue, the mutation is only fiscal proceeding and it does not create any right or title and therefor, if the petitioner has any right in the property in question on account of his being adopted son of late Shri Nahar Singh as alleged, it is open for him to take appropriate proceedings and seek declaration in this regard from the court of competent jurisdiction in accordance with law. 11. For the aforementioned reasons, the order impugned passed by the Board of Revenue, declining to interfere with the concurrent finding arrived at by the Appellate Authorities does not suffer from any infirmity, illegality or jurisdictional error so as to warrant interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 12. Accordingly, the writ petition is dismissed in limine.Writ Petition Dismissed in Limine. *******