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2015 DIGILAW 193 (RAJ)

Onkari v. Board of Revenue Rajasthan, Ajmer

2015-01-21

PRAKASH GUPTA, SUNIL AMBWANI

body2015
JUDGMENT : 1. We have heard learned Senior Counsel appearing for the appellants. 2. Learned Single Judge has dismissed the writ petition arising out of the suit for declaration, partition and injunction filed by Kalyan and Chauthmal, the real brothers of Gopi, all sons of Hazari. The suit was decreed, declaring that all the four brothers, namely, Kalyan-plaintiff respondent No.1, Chauthmal, Gopi and Lodkya have inherited the properties of their father late Shri Hazari in equal shares. An appeal arising out of the order dated 21.4.2010 passed by Sub Divisional Officer, Uniyara, District Tonk was dismissed by the appellate authority on 29.4.2011, and a second appeal was dismissed by the Revenue Board on 21.7.2011, against which the writ petition was filed. Learned Single Judge did not find any good ground to interfere with the concurrent judgments of the revenue authorities, and dismissed the writ petition, giving rise to this Special Appeal. 3. It is submitted by learned Senior Counsel appearing for the appellants that the appellants are heirs and legal representatives of late Gopi. Learned Single Judge committed gross error of law in holding that Hazari, father of Gopi, the predecessor-in-interest of the appellants inherited the properties of Sukha, as he had married his daughter Bhanwar Bai and was living as ghar jamai. 4. Late Sukha did not have any son; he had two daughters Bhanwar Bai and Kali Bai. Bhanwar Bai married Hazari, who had four sons including Sukha. The revenue suit was filed by Kalyan and Chauthmal, both sons of Hazari alleging that the plaintiffs and respondents are joint owners, and are in possession of the khatas as described in the suit, and were depositing the land revenue. Sukha did not have any son. He had only two daughters, namely, Bhanwar Bai and Kali Bai. Bhanwar Bai lived with him throughout his lifetime. Her husband was living as ghar jamai, and was looking after his properties. On the death of Sukha, all the properties were recorded in the name of Gopi, as he was the eldest son of Hazari. During the lifetime of Hazari, plaintiff and defendants have partitioned the property, and since thereafter, they were in separate possession of their shares in the land. 5. In the written statement, Gopi set up a plea that his maternal grandfather Sukha had adopted him 60 years prior to filing of the suit. During the lifetime of Hazari, plaintiff and defendants have partitioned the property, and since thereafter, they were in separate possession of their shares in the land. 5. In the written statement, Gopi set up a plea that his maternal grandfather Sukha had adopted him 60 years prior to filing of the suit. An adoption deed was executed and registered, after performing the rites, in accordance with the social customs, and thus, the entire properties of Sukha were inherited by Gopi. 6. The trial court framed three issues namely; (i) Whether the plaintiff and defendants are real brothers, and are sons of late Hazari, and are joint owners in possession of the suit property, and in possession of the plots in suit, with total area of 6.2 hectares? (ii) Whether the plaintiffs are entitled to get partition of the land? (iii) Whether the property in dispute was owned by Sukha, who had taken defendant No.1 in adoption, and accordingly defendant No.1 is the sole owner of the property? 7. On the question of adoption, while deciding issue No.3, it was held by the trial court that the property in dispute was owned by late Sukha, the maternal grandfather of defendant No.1. Defendant No.1 did not produce any document in proof of adoption. Since he was the eldest son of late Sukha, his name alone was recorded in the revenue records, and in this manner, late Gopi is not only the sole holder of the khata. The suit was decreed to the extent of declaration that all the four brothers, who are sons of late Hazari, were joint owners of the properties. The appellate authority confirmed the decree, upholding the findings, with observations that the name of late Gopi was recorded in the revenue records, both as son of Sukha and son of Hazari. Whereas in respect of khata No.25 area 6.49 hectares, name of late Gopi was recorded as son of late Sukha; in respect of khata No.26 area 6.62 hectares, his name was recorded as son of late Hazari. The contention of the appellants that Gopi was adopted by Sukha by registered adoption deed, was not proved, inasmuch as no adoption deed was produced. The mutation in favour of late Gopi, both as son of Sukha and Hazari, does not prove that he was adopted by Sukha, after performing rites, by a registered adoption deed. The contention of the appellants that Gopi was adopted by Sukha by registered adoption deed, was not proved, inasmuch as no adoption deed was produced. The mutation in favour of late Gopi, both as son of Sukha and Hazari, does not prove that he was adopted by Sukha, after performing rites, by a registered adoption deed. No such adoption deed was produced in evidence. The finding was upheld by the Revenue Board, with which learned Single Judge has not interfered. 8. Learned Senior Counsel appearing for the appellants submits that in the writ petition, the petitioner had filed an application under Order 41 Rule 27 of the Code of Civil Procedure, with which he had filed Jamabandi and the order passed by Sub Divisional Officer dated 8.6.1964, by which the name of Gopi as adopted son of Sukha was recorded on the disputed land. We find from the record that the said application was allowed by the Court, and that, the documents were taken into consideration by the High Court. 9. Learned Senior Counsel further submits that under Section 239 of the Rajasthan Tenancy Act, 1955, whenever a question of proprietary rights in respect of land forming the subject matter of such suit proceeding is raised and such question has not been previously determined by a civil court of competent jurisdiction, the revenue court shall frame an issue on the question of proprietary right and submit the record to the competent civil court for the decision on that issue only. He has relied upon Single Bench judgment of this Court in Ramji Lal Vs. Sultan-(25), reported in RRD 1985 99, and in which it was held, on a question of adoption on the basis of which the claim of the plaintiff and a declaration was sought, since no objection was taken at any stage before the trial court and both the parties led the evidence, and obtained a judgment, and that too, by civil court, the first appellate court should not have entertained any such objection, more so because no failure of justice or prejudice has been shown. Prior to referring these findings, Single Judge observed, that in view of Section 207 of the Rajasthan Tenancy Act, where the suit was mainly for declaration of adoption and the claim of possession etc., were ancillary and secondary to the main relief, the suit is triable by the civil court and not by the revenue court. 10. Section 239 of the Rajasthan Tenancy Act, 1955 provides that if in any suit or proceeding in a revenue court, the question of proprietary right in respect of land forming the subject matter of such suit or proceeding is raised, and such question has not been previously determined by a civil court of competent jurisdiction, the revenue court is required to frame an issue and submit the record to the competent civil court. The question of proprietary rights, in Section 239 of the Rajasthan Tenancy Act, 1955 would not mean any plea in plaint or in defence of the proprietary rights, but a bonafide question of proprietary right, where a plea has been raised or set up in defence, and on which the issue has been framed, where there are vague and indefinite pleadings, and no substantial material has either been referred to in the pleading, or produced, the revenue courts are not bound to treat such a plea as a question of proprietary right, and refer the matter to the civil court. In the present case, late Gopi claimed adoption by Sukha. He did not refer to any date, or even an year of such adoption. He simply stated that 60 years ago, he was adopted by Sukha. He relied upon the revenue records, in which his name was mutated as heir of late Sukha, his maternal grandfather. In some other khatas of the same period, his name was mutated as son of Hazari, his father. In case he had been adopted by late Sukha, his maternal grandfather, his name could not have been mutated as son of late Hazari, his father, alongwith three other brothers. Further we find that it was specifically stated before the trial court, in the appellate court, as well as in the High Court that he was adopted by registered adoption deed after performing religious rites. No evidence was produced with regard to such religious rites, nor any registered adoption deed was produced to establish the adoption. Further we find that it was specifically stated before the trial court, in the appellate court, as well as in the High Court that he was adopted by registered adoption deed after performing religious rites. No evidence was produced with regard to such religious rites, nor any registered adoption deed was produced to establish the adoption. The entire claim of Gopi therefore, was to oust his three brothers from the properties, which was recorded in the name of late Sukha, his maternal grandfather. 11. In view of the aforesaid discussion, we do not find any good ground to interfere. 12. The Special Appeal is dismissed.