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2015 DIGILAW 339 (RAJ)

Laddu Lal v. Board of Revenue

2015-02-05

ALOK SHARMA

body2015
JUDGMENT 1. - This petition has been filed against the judgment dated 29.06.2011, passed by the Board of Revenue, Ajmer (hereinafter "the Board") setting aside the judgment and decree dated 31.01.2004, passed by the Deputy District Collector, Sawai Madhopur as also the affirmation judgment and decree dated 01.09.2005, passed by the Revenue Appellate Authority, Sawai Madhopur (hereinafter "RAA") whereby the respondent-plaintiff's (hereinafter "the plaintiff") suit for declaration and correction of entries was decreed and the counter claim of the petitioner-defendant (hereinafter "the defendant") dismissed. The Board has in the circumstances dismissed the plaintiff's suit and decreed the defendant's counter claim. 2. The facts of the case are that the plaintiff, one Bheru, now deceased and represented by his LR Laddu Lal, filed a suit for declaration and correction of entries with regard to land in khasra No.852 measuring 18 biswa, 853 measuring 1 bigha, 854 measuring 2 biswa, 855 measuring 13 biswa, 856 measuring 14 biswa, 857 measuring 12 biswa, 858 measuring 1 bigha 12 biswa, 859 measuring 1 bigha 14 biswa, 860 measuring 1 bigha 4 biswa, 861 measuring 1 bigha & 862 measuring 10 biswa situate at Sawai Madhopur (hereinafter "the suit land"). It was stated that the suit land had been in exclusive cultivatory possession of the plaintiff for years as reflected in the Misal Hakiyat of Samvat 1988, but during the settlement operation from Samvat 2009-2023, the said suit land was wrongly and unauthorizedly entered by the Settlement Authority jointly in his name and that of Mooliya son of Birda. Stating that the said entries were not binding as they were made by the Settlement Authority without jurisdiction, it was prayed that the requisite declaration as to the plaintiff's sole khatedari of suit land be made and correction of entries directed as the defendant Dhooliya son of Mooliya who had since expired was never in cultivatory possession of the suit land albeit under the settlement operation during Samvat 2009-2023, his name was indeed entered as a co-khatedar. 3. On service of notice, the defendant Dhooliya, now deceased and represented through his LRs i.e. respondent Nos.5 to 8, filed a written statement denying the averments made in the plaint with regard to the plaintiff being the sole khatedar and in exclusive possession of the suit land. 3. On service of notice, the defendant Dhooliya, now deceased and represented through his LRs i.e. respondent Nos.5 to 8, filed a written statement denying the averments made in the plaint with regard to the plaintiff being the sole khatedar and in exclusive possession of the suit land. A counter claim was also filed stating that the suit land was ancestral land and in terms of the lineage of the plaintiff and the defendant as uncle and nephew detailed in the family tree before the Court, he was entitled to half share/khatedari in the suit land and declaration as such. The trial court on the basis of the pleading of the parties, framed five issues which are as under : " 1- vk;k oknh fookfnr vkjkft;kr ckds xzke lokbZ ek/kksiqj dk ,dek= [kkrsnkj dk'rdkjh gS o dkfct gSA --------oknh 2- vk;k oknh jktLo fjdkWMZ esa izfroknh ua0 1 dk uke gtQ djokdj crkSj [kkrsnkj viuk uke ntZ djkus o ukekarjdj.k vius uke rLnhd djkus dk vf/kdkjh gS\ --------oknh 3- vk;k fooknxzLr vkjkft;kr oknh o izfroknh dh la;qDr [kkrsnkjh dh iSr`d vkjkth gS\ -------izfroknh 4- vk;k izfroknh /kwY;k fookfnr vkjkft;kr dk oS/kkfud :i ls rdkLek djkdj vius fgLls dh 'ks"k Hkwfe 1 ch?kk 12-5 fcLok dk okLrfod dCtk izkIr djus dk vf/kdkjh gS\ -------izfroknh 5- nknjlh\ " 4. On consideration of the evidence of the parties, the trial court vide its judgment and decree dated 31.01.2004 found that the plaintiff's case is liable to be succeed. The defendant Dhooliya's appeal before the RAA under Section 223 of the Rajasthan Tenancy Act, 1955 (hereinafter "the Act of 1955") was also dismissed vide judgment and decree dated 01.09.2005. The matter was thereupon carried to the Board in second appeal by the LRs of Dhooliya who had in the meantime expired. Vide impugned judgment dated 29.06.2011, the Board proceeded to set aside the findings of the Deputy District Collector, Sawai Madhopur and RAA, Sawai Madhopur and dismissed the plaintiff's suit and in effect decreed the counter claim of the defendant. Hence this writ petition. 5. Mr. K.K. Mehrishi, Sr. Advocate appearing with Mr. Vide impugned judgment dated 29.06.2011, the Board proceeded to set aside the findings of the Deputy District Collector, Sawai Madhopur and RAA, Sawai Madhopur and dismissed the plaintiff's suit and in effect decreed the counter claim of the defendant. Hence this writ petition. 5. Mr. K.K. Mehrishi, Sr. Advocate appearing with Mr. Pawan Pareek, for the plaintiff, submits that there was no good ground available with the Board to upset the concurrent findings of fact by the Deputy District Collector, Sawai Madhopur and the RAA, Sawai Madhopur as to the plaintiff's sole khatedari of the suit land decreeing the plaintiff's suit for declaration and correction of entries and simultaneously dismissing the defendant's counter claim claiming half share/khatedari in the suit land on the ground of it being ancestral land. It has been submitted that in terms of issue No.3 framed by the Deputy District Collector, the burden was on the defendant to establish that the suit land was ancestral entitling the defendant as descendant under a common ancestor along with the plaintiff to half share thereof. It has been further submitted that the defendant not having entered the witness box and instead required his power of attorney to lead evidence on his behalf was not entitled to declaration of half share/khatedari in the suit land. It has been submitted that the Board failed to appreciate that the suit land having been entered in Misal Hakiyat of Samvat 1988 (record of land right) in the name of the plaintiff without an order of the competent court, the revenue record could not have been altered to include the name of the defendant as co-khatedar thereof in settlement proceedings. It was submitted that the Board erred in relying on the purported admission of the plaintiff in a sale-deed dated 11.11.1986 (Exhibit-D/1) where the plaintiff had admitted to half share/equal share of the defendant in the suit land. Similarly the Board erred in making too much out of the electricity connection in a well situate at the suit land obtained in the year 1968, equivalent to Samvat 2025, in the joint name of the plaintiff and the defendant. Counsel submitted that both the electricity connection and the sale-deed dated 11.11.1986 were subsequent to the wrongful entries in the revenue record in the course of settlement operation of Samvat 2009 to 2023 unauthorisedly showing the defendant as co-khatedar of the suit land. Counsel submitted that both the electricity connection and the sale-deed dated 11.11.1986 were subsequent to the wrongful entries in the revenue record in the course of settlement operation of Samvat 2009 to 2023 unauthorisedly showing the defendant as co-khatedar of the suit land. It has been submitted that it was in the compelling circumstances of the revenue record unauthorisedly altered showing the defendant as co-khatedar, that the recital in the sale-deed dated 11.11.1986 admitting to the defendant's half share/khatedari in the suit land was occasioned and it was in the same circumstances in which the electricity connection to the well was taken on 11.09.1968 because at the relevant point of time such connection could not have been otherwise obtained singularly in the name of the plaintiff. It has been submitted that for the aforesaid grounds, the judgment of the Board rendered on 29.06.2011 is liable to be set aside and that of the Deputy District Collector, Sawai Madhopur as affirmed by the RAA liable to be upheld resulting in the plaintiff being declared as the sole khatedar of the suit land and accordingly entitled to correction of entries. 6. Mr. Amit Gupta, appearing for the defendant submits that Clause (iv) of Section 224(2) provides that an appeal shall lie to the Board inter alia on the ground of the decision impugned passed by RAA being contrary to the weight of evidence on record. The Board has ample scope to interfere with the judgment under challenge also on the ground of it being contrary to law as also suffering from perversity. Counsel submits that entries in the revenue record recording the defendant as co-khatedar of the suit land along with the plaintiff obtained for a period of over 30 years i.e. from samvat 2009 to 2044 when the plaintiff's suit was laid. It is submitted that during the aforesaid period a sale-deed was jointly executed on 11.11.1986 by the plaintiff and defendant wherein a recital recorded was that the suit land covering the entire khasras in dispute was in the co-khatedari of the plaintiff and the defendant. It has been submitted that the said document was filed and proved as Exhibit-D/1 before the trial court and in terms of Section 31 of the Evidence Act the plaintiff was estopped from challenging the said admission without a good ground based on ignorance, mistake, coercion etc. and setting up a case contrary thereto. It has been submitted that the said document was filed and proved as Exhibit-D/1 before the trial court and in terms of Section 31 of the Evidence Act the plaintiff was estopped from challenging the said admission without a good ground based on ignorance, mistake, coercion etc. and setting up a case contrary thereto. This was not done submits counsel. It was submitted that the admission of the plaintiff in the sale-deed dated 11.11.1986 was not adequately explained or watered down for good reason in the evidence before the trial court. Yet the trial court overlooked the said unshaken admission and other attendant circumstances in proceeding to decree the plaintiff's suit without just cause. The trial court's error was mechanically compounded by the RAA. It has been submitted that the Board has taken note of the aforesaid facts overlooked by the Deputy Collector and RAA and also the fact that from khasra girdawari relevant to the time the defendant was found to be in possession of the suit land. It was further submitted that aside of the aforesaid, the Board also noted that the plaintiff had failed to prove the manner in which he came into the purported sole khatedari of the suit land such as by way of purchase through a registered sale-deed or allotment by the Government. It was submitted that in view of the admitted common ancestor of the plaintiff and the defendant, the Board therefore concluded that the evidence on record was sufficient to entail the setting aside of the judgment and decree dated 31.01.2004, passed by the Deputy District Collector, Sawai Madhopur as affirmed in appeal by RAA, Sawai Madhopur on 01.09.2005, dismiss the plaintiff's suit on the one hand and decree the defendant's counter claim, on the other, holding that the suit property was ancestral property and the defendant was entitled to half share/khatedari thereof. 7. Heard the counsel for the plaintiff and the defendant. 8. The jurisdiction of this Court under Article 226 and 227 of the Constitution of India under which the present writ petition states to have been filed is extremely limited in cases of the nature at hand. This Court has to see as to whether the impugned judgment of the Board passed on 29.06.2011 fails on the ground of perversity or is vitiated by misdirection in law. This Court has to see as to whether the impugned judgment of the Board passed on 29.06.2011 fails on the ground of perversity or is vitiated by misdirection in law. In my considered opinion, the reasoning of the Board is based on a wholistic appreciation of the evidence on record particularly the admission of the plaintiff in Exhibit-D/1 where he along with the defendant sold a parcel of land to a third party with the recital that two were co-khatedar of the land in issue. 9. It is well settled that an unshaken admission is the best evidence even though it is true that to begin with it may not be conclusive. (Section 31 of the Evidence Act). In Avadh Kishore Das v. Ram Gopal ( AIR 1979 SC 861 ) , the Hon'ble Apex Court has held that even though evidentiary admissions are not conclusive proof of the facts admitted and may be shown to be erroneously made or shown to be wrong but they operate as estoppel and shift the burden of proof, placing it on the maker of the admission or where relevant on her representative-in-interest. Unless shown or explained to be untrue, they are an efficacious proof of the facts admitted. In the contest of the admission in a registered deed, the Allahabad High Court in the case of Bhola v. Man Matum (1964 ALJ 749) has held that the value of an admission in a registered sale-deed, formally executed by a party, with an endorsement showing that the executant was fully aware of the contents of the deed and executed it with due deliberation and full understanding, is considerable unless it is explained satisfactorily as it shifts the burden of proving the contrary on the party which made the admission. Counsel for the petitioner has not been able to satisfy this Court from the evidence in the case that the plaintiff had shown satisfactorily that the admission made by him in the registered sale-deed dated 11.11.1986 was either erroneous, mistaken or for a fraudulent purpose. The admission therefore in the sale-deed dated 11.11.1986 was binding on the plaintiff and of substantial probative worth. Further the case of the defendant was buttressed from the evidence on record that in the khasra Girdawari of the relevant period, the defendant was in possession of his share in the suit land. The admission therefore in the sale-deed dated 11.11.1986 was binding on the plaintiff and of substantial probative worth. Further the case of the defendant was buttressed from the evidence on record that in the khasra Girdawari of the relevant period, the defendant was in possession of his share in the suit land. Besides the plaintiff had failed to establish in terms of the burden on him in his suit for declaration that he was the sole khatedar by way of either a duly registered sale-deed standing to his name or allotment made by the Government in his favour. The conclusions of the Board on the test of preponderance of probability applied to title dispute in case where clinching evidence is not available, cannot be faulted with. 10. I therefore find no force in the writ petition. 11. Dismissed.Petition Dismissed. *******