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Rajasthan High Court · body

2016 DIGILAW 749 (RAJ)

Dakha v. Board of Revenue

2016-05-24

J.K.RANKA, M.N.BHANDARI

body2016
JUDGMENT : It is stated that Dakha has died during pendency of the appeal. A prayer is made to delete name of the appellant Mst. Dakha and her legal heirs are already on record thus no application to take her legal heirs on record is required to be filed. 2. As prayed, name of Dakha is deleted from the array of appellants. Amended cause title is to be read with deletion of name of appellant No.1. 3. By these appeals, a challenge is made to the order of the learned Single Judge passed in two different writ petitions, decided by common order dated 15.03.2010. 4. The appellant filed a suit for correction of entry of Khasra No.223, whereas, Smt. Janku, now through legal heirs and others also maintained a suit for declaration and injunction for the property in question. 5. The non-appellant Smt. Janku died during pendency of the litigation and her legal heirs are already on record. A suit preferred by the appellant was dismissed while decreeing the suit preferred by the non-appellant. The orders were challenged by the appellant before the revenue appellate authority. It was stated that the land measuring 1.97 hectares was belonging to Smt. Kali W/o Late Shri Raghunath and on partition, it came to the appellant. Learned Revenue Appellate Authority framed issues for its decision. It found the land in question to be ancestral property and no partition ever took place in accordance to the provisions of law. 6. The order passed by the revenue appellate authority confirming the order passed in favour of the non-appellant was challenged by the appellant before the Board of Revenue. The Board of Revenue also dismissed the appeal preferred by the appellant thus the decree passed in favour of the non-appellant was confirmed by the Board of Revenue also. The petitioner then challenged the orders of the revenue courts by maintaining writ petitions. The writ petitions were dismissed in view of concurrent findings of fact of three revenue courts in favour of the non-appellant. The court further found that no error could be reflected in the order passed by the Board of Revenue or other revenue courts so as to cause interference therein. 7. Learned counsel for appellant submits that while issuing notices of these appeals, this court took notice as to whether the issue regarding partition of the property has been adjudicated properly or not. 7. Learned counsel for appellant submits that while issuing notices of these appeals, this court took notice as to whether the issue regarding partition of the property has been adjudicated properly or not. It is looking to the fact that even if it is taken to be ancestral property, son-Raghunath died during life time of his father and partition of property took place thus the issue of partition was required to be considered in the light of the fact aforesaid. 8. Learned counsel for non-appellant submits that when land was partitioned by the parties, then rights should have been considered accordingly. Learned revenue court failed to consider the issue of partition though it was found that partition deed exists on rough papers. As to why it has not been given cognizance to the said partition deed, is not reflected in the order. In the light of aforesaid, revenue appellate authorities so as Board of Revenue should have caused interference in the order passed by the Assistant Collector. The revenue appellate courts failed to consider the aforesaid aspect. The issue was raised before the learned Single Judge but has not been considered. A prayer is accordingly made to set aside the orders passed by the revenue courts so as the learned Single Judge. 9. We have considered rival submissions made by the parties and perused the record. 10. It is a case where two suits were maintained against each other by both the parties herein. The suit preferred by the appellant was for correction of entry, whereas, suit in the hands of Smt. Janku, now represented by her legal heirs and others, was for declaration and injunction. It was for Khasra No.223 measuring 1 hectare and 97 ares. The suit for correction of entry was dismissed while decreeing the suit for declaration and injunction. 11. The theory of partition taken by the appellant was not accepted in absence of valid partition. The findings recorded by the Assistant Collector were affirmed by the Revenue Appellate Authorities so as Board of Revenue. The findings of fact recorded by three revenue courts have not been interfered by the learned Single Judge while exercising jurisdiction under Articles 226 and 227 of the Constitution of India. We find that in the ancestral property, right gets vested in members of the family on their birth thus could not have been partitioned without complying the provisions of law. We find that in the ancestral property, right gets vested in members of the family on their birth thus could not have been partitioned without complying the provisions of law. 12. Learned counsel for appellant had taken a plea about partition but if suit for correction of entry is perused, it has not been mentioned that land in dispute comes in their share in pursuance to partition thus the entry contrary to it needs to be corrected. It seems that in a suit preferred by the non-appellant for declaration and injunction, the plea about partition was taken for the first time. 13. Learned counsel for appellant could not clarify as to why pleading regarding partition of the land was not made in the suit for correction of entry. Learned counsel failed to explain the aforesaid however referred the issue No.3 framed specifically on the written statement by the appellant. 14. We find that the Assistant Collector has considered the evidence and came to the conclusion that partition could not be proved by the appellant. The finding of fact recorded by the Assistant Collector has been affirmed by the revenue appellate authorities so as Board of Revenue. Looking to the concurrent findings of fact by the Revenue Courts and in absence of partition as per provisions of law, right created in ancestral property cannot be taken away. In our opinion, the suit for correction of entry filed by the appellant was rightly dismissed while decreeing the suit preferred by the non-appellant for declaration and injunction. 15. We do not find any error in the impugned order so as to cause interference therein. The special appeals are accordingly dismissed. A coy of this order be placed in the connected file.