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2017 DIGILAW 55 (RAJ)

Lad Kanwar v. Board of Revenue for Rajasthan

2017-01-05

DINESH MEHTA

body2017
JUDGMENT : Dinesh Mehta, J. 1. The petitioners being L.Rs of Ram Kishan, being the defendant in the original suit proceedings have filed the present writ petition under Article 226, 227 of the Constitution of India challenging the order dated 13.12.2002, passed by the Board of Revenue, Ajmer. 2. The brief facts of the present case are that the petitioners being L.Rs of Ram Kisan, were defendant in the suit for partition and declaration filed by the plaintiffs, on 29.09.1980, inter alia seeking their share in the agricultural land situated in village Delunda Tehsil and District Bundi, claiming the same to be under their joint ownership/ancestral land. 3. The case set-up by the plaintiff was that Ram Kisan/defendant and father of the plaintiffs Manna were real brothers, having half share each in the property, however the defendant Ram Kishan had fraudulently got the land mutated in his favour. 4. The said suit filed by the plaintiffs/petitioners came to be dismissed by the Assistant Collector vide his order dated 26.10.1996, which was challenged by way of filing appeal before Revenue Appellate Authority by the plaintiffs. The Appellate Authority, Revenue Appellate Authority dismissed the appeal vide his order dated 14.07.1997. Being aggrieved with the said order of the learned Revenue appellate Authority, the petitioner preferred an appeal before the Board of Revenue, Ajmer, which allowed the said appeal vide its order dated 13.12.2002 and held that both the courts below have misread the document Ex. D-2 and has decided the issue No. 1, 3 and 4 contrary to facts and law. In this petition, challenge has been made to the order of Board of Revenue dated 13.12.2002. 5. Learned counsel for the petitioner Mr. Amit Pareek invited the attention of this court towards various documents; particularly the order of Settlement Officer (placed with the reply on Annexure-5), whereby he has settled/recorded the land in question in name of the petitioner (original defendant Ram Kishan). 5. Learned counsel for the petitioner Mr. Amit Pareek invited the attention of this court towards various documents; particularly the order of Settlement Officer (placed with the reply on Annexure-5), whereby he has settled/recorded the land in question in name of the petitioner (original defendant Ram Kishan). It will be appropriate to reproduce the findings recorded by the Settlement Officer which read thus:- ^^pqU;k o eUuk Qksr gks pqds gS pqU;k uk vkSykn gS o eUuk ds nks iq= xaxk/kj o dSyk’k gS tks eUuk dh ekStqnxh esa gh t;sZ jftLVªh ua- 7669 fnukad 28-5-46 ds vius ekek ?kklh yky iq= x.kir yky dkSe czkgeu lk0 [kVdM+ ds xksn pyk x;k Fkk tks xzke nsywUnk esa vkjkth pqU;k] jkefd’ku o [kqn eUuk dh Fkh mlesa ls xr [kljk uEcj 228@5 o 240@1@4A dks NksMdj leLFk vkjkth [kkrs dh 'ks”k 44A@ ij eq0 ykM+ dqWoj csok eUuk dkse czkgeu gky vkckn nsywUnk dk dksbZ gd o mlds nks cPps xaxk/kj o dSyk’k dk u jguk tkfgj :c: xzke ljiap o iap o xzke dkLr dkjku ds fd;k gS] vr% ;g vkjkth [kkrk ua0 6 ds ctk; rUgk jke fd’ku ds gksuk ckftc gSA** 6. Learned counsel for the petitioner submitted that from a reading the order of the learned Assistant Commissioner, it is clear that the Assistant Collector had passed the order after appreciating the evidence and the same was perfectly just and proper, inasmuch as he has given a finding based on the appreciation of the evidence that Manna, the father of the plaintiffs had gone in adoption vide document dated 24.06.1944 and further based on the recital in the document Ex. D-2, during the entries recorded by the Settlement Officer, the mother of the plaintiffs Smt. Lad Kanwar had not only accepted the factum of Manna having gone in adoption, but had also relinquished her rights and so also rights of her children speaking on their behalf, in the joint family property. 7. According to the learned counsel for the petitioner, Manna had already gone in adoption in 1946 itself and passed away in 1964, as such he did not have any right in the ancestral property of Madho. Learned counsel for the petitioner further submitted that the factum of adoption had duly been proved by way of documentary as well as oral evidence by the defendant and the said issue had rightly been decided in his favour. 8. Learned counsel for the petitioner further submitted that the factum of adoption had duly been proved by way of documentary as well as oral evidence by the defendant and the said issue had rightly been decided in his favour. 8. Learned counsel for the petitioner further contended that in view of admission made by none other than Smt. Lad Kanwar in whose presence, settlement proceedings were finalised, no other evidence was required as she herself had accepted relinquishment of her rights. Learned counsel for the petitioner heavily relied upon the decree passed by the SDM, Bundi on 18.02.1970, whereby Ram Kishan has been declared khatedar tenant of the land in question. 9. Having argued this, learned counsel for the petitioner submitted that without challenging the said order dated 18.02.1970 and the order of the Settlement Officer Ex. D-2 referred above, the plaintiffs, could not lay his claim for any of the rights in the ancestral property, as these judicial and quasi-judicial orders have attained finality; as a result where of the rights of the plaintiffs have extinguished. 10. On the other hand, learned counsel for the respondents Mr. Amit Jindal vehemently opposed the arguments raised by the learned counsel for the petitioner and supported the order passed by the Board of Revenue. Learned counsel for the respondents drew attention of this Court towards the order of the settlement officer being Ex-D2 and tried to interpret the entries. His argument was that the noting of the settlement officer does not record the statement of Smt. Lad Kanwar and the entries by the Settlement Officer had not been made on the basis of her version. According to him the recital clearly shows that the said information or statement was given by one Mr. Ram Kishan Ameen, on the basis of whose information, the settlement entries have been made. He also submitted that though these entries or the record purported by bears the thumb impression of Smt. Lad Kanwar but as argued by the plaintiffs, before the Revenue Appellate Authority, they were not of Smt. Lad Kanwar, the plaintiff. He submitted that as a matter of fact, this thumb impression was that of wife of Ram Kishan himself, who shared the same name incidentally. 11. He submitted that as a matter of fact, this thumb impression was that of wife of Ram Kishan himself, who shared the same name incidentally. 11. Thereafter counsel for the respondents read over the document alleged to be an adoption deed, being Ann-4 with his reply and submitted that a perusal of the document leaves no room for ambiguity that it is a Will executed by Ghasilal. He also pointed out that the said Will has been witnessed by none other than Ramkishan. Advancing his arguments, learned counsel for the respondents submitted that firstly, the entry made by the settlement officer, Ex-D2 is not an entry defining the rights and title of the parties and more so the settlement officer has no jurisdiction to change the revenue entries. Showing the Jamabandi of Samvat 2004-2008 relevant to year 1948-1952 (Annexure R-6/1) he tried to convince the court that in the revenue record prior to 1970 Manna was recorded as joint Khatedar owner. In support of his argument that Settlement Officer has no jurisdiction to order for change in revenue record, learned counsel for respondent relied upon a judgment to this Court rendered in 2002, in case of Tehsildar, Girva Vs. Bhawan & ors., 2001 (4) WLC (Raj.) 387. He further submitted that mutation entries are only fiscal entries, neither do they decide the rights and title of the Khatedar and nor they are evidence of ownership or substantive rights of the person concerned. He has placed reliance upon judgment of Hon'ble Supreme Court in the case of Durga Das Vs. Collector & ors., reported in (1996) 5 SCC 618 . 12. Having heard rival contentions and perused the documents on record, I am in the considered view that twin legs on which the defendants' claim that Ramkishan was Khatedar-tenant of the joint ancestral property stands, is without legal foundation. Their first limb is the order of Settlement Officer, Ex. D-2, a bare look at the entries of settlement recorded by the Settlement Officer reveals that at the time of settlement Ramkishan, who was the apparent beneficiary, appeared before the Settlement Officer and stated that his two brothers namely Chunni Lal and Manna have died; Chunni died without any heirs while Manna had two sons namely Gangadhar and Kailash who have gone in adoption, vide registered deed No. 7669 dated 28th May, 1946. It is surprising to note that it was not Lad Kanwar or even Ramkishan, who informed the Settlement Officer that Smt. Lad Kanwar (wife of Manna) had extinguished her rights in the property, on the contrary one Radheyshyam Sharma, Amin surreptitiously gave such information to the Settlement Officer, who accepted it as a gospel truth. 13. Without going into the dispute as to whether the thumb impression on the record of settlement were that of Lad Kanwar the plaintiff or not, suffice it to state that such document cannot be treated to be a document of title. According to me, the order of settlement have been obtained by misleading the Settlement Officer and by fraud, and hence a nullity in the eye of law. The reasons for my holding so are not far to seek. At the time of recording of settlement in 1964, Ram Kishan the defendant had stated that Manna had two sons namely Gangadhar and Kailash who had gone in adoption vide a registered "Godnama" and the Settlement Officer was made to agree that they would produce the registered document No. 7699 dated 28th May, 1946 in the course of time. It is surprising that without looking at the alleged document, the Settlement Officer had recorded a finding in favour of Ram Kishan and that too simply on the basis of statement of Ameen. In the light of law laid down by this court in Tehsildar, Girva Vs. Bhagwan & ors. (supra), the entries made at the time of settlement cannot be considered. The Settlement Officer is not empowered to substitute the entries in the revenue record. 14. The second limit of the defendants' case is, the order dated 18th February, 1970 passed by the S.D.M. (Bundi), which has been placed by the respondents/plaintiffs laced before this court, alongwith proceedings of the SDM, Bundi, as Annexure R-8, for ready reference of this Court. 15. A perusal of the plaint filed by Ram Kishan (respondent/defendant), petitioner in the case before SDM reveals that he had projected himself to be a sole heir stating that his two other brothers Manna Lal and Chunni Lal died without any heirs, about 10 years back. 15. A perusal of the plaint filed by Ram Kishan (respondent/defendant), petitioner in the case before SDM reveals that he had projected himself to be a sole heir stating that his two other brothers Manna Lal and Chunni Lal died without any heirs, about 10 years back. It will not be out of place to reproduce his version as stated in para 2 of the plaint which reads as under:- ^^;g fd okn i= dh dye uEcj 1 esa of.kZr eUuk yky o pwUuh yky dk djhc 10 lky igys ykvkSykn LoxZokl gks x;k gSA rc ls oknh mDr Hkwfe ij fujUrj :i ls dkfct pyk vk jgk gSA vkSj mudk dk;e eqdke o tk;t okfj’k oknh Lo;a gh gSA oknh ds vykok utnhdh dksbZ fj’rsnkj ugha gSA** 16. On the basis of such false averment or blatant lie, learned SDM Bundi has been misled to decree the suit, and Ram Kishan had been declared sole khatedar-tenant of the agricultural land in question. The proceedings culminated in the order dated 18.02.1970 before by the SDM Bundi were behind the back of the LR's of Manna, the plaintiffs, as such said decree dt. 18.02.1970 is a nullity and cannot be binding upon plaintiffs. 17. In this view of the matter, foundation of the claim of the petitioner-defendant about right/ownership of the land which is also the edifice of the order of the Additional Collector dt. 26.10.1996 falls flat on the ground. Equally baseless is the argument of learned counsel for the petitioner that, as the order dated 18.02.1970 had attained finality, no decree can be passed contrary to it. It is undisputed fact that the said order was obtained without impleading Manna & his L.Rs and hence such order obtained by fraud, cannot work as a road block in the path of justice. 18. Learned counsel for the respondent Mr. Amit Jindal showed that the revenue record such as khasra girdawari etc. till Samvat 2024, relevant to year 1969 showed Manna as khatedars, and it was only after the order of the SDM, Bundi dated 18th February, 1970, the mutation was made and revenue entries were changed, about which they were unaware. 19. A perusal of document dated 26.06.1944 and No. 7669 dated 28.5.1946 (read as Annexure 3) registered document leaves no room for ambiguity that it was a Will and not an adoption deed as claimed by the petitioner. 19. A perusal of document dated 26.06.1944 and No. 7669 dated 28.5.1946 (read as Annexure 3) registered document leaves no room for ambiguity that it was a Will and not an adoption deed as claimed by the petitioner. Learned SDM and the Revenue Appellate Authority have non suited the plaintiff on the basis of the document dated 28.05.1946, which is a will on the face of it. The trial court and the appellate court have completely misread this document and the said error has been set at naught, by the learned Members of the Revenue Board, Ajmer vide their order dt. 13.12.2004. 20. On perusal of the factual matrix and scanning of the record of the case I unheritently hold that the defendant Ram Kishan had taken away rather stultified the legitimate rights of the plaintiffs by hoodwinking the revenue authorities and has kept on changing his stand/version before different authorities. 21. There is no infirmity or illegality in the order impugned dated 13.12.2002 passed by learned Board of Revenue, Ajmer, whereby plaintiffs have been declared khatedar-tenant of 1/2 portion of the contentious land. I hereby affirm the same by dismissing the present writ petition.