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2018 DIGILAW 189 (RAJ)

Gurtej Singh v. Maghar Singh

2018-01-16

GOPAL KRISHAN VYAS, VINIT KUMAR MATHUR

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JUDGMENT : G.K. Vyas, J. In this special appeal filed under Rule 1374 of the Rajasthan High Court Rules and Section 18 of Rajasthan High Court Ordinance, 1949 read with Article 215 of the Constitution of India, the order dated 23.10.2017 passed by learned Single Judge in S.B. Civil Review Petition No. 163/2017 (Gurtej Singh v. Maghar Singh & Ors.) whereby review petition filed by the appellant was dismissed. The appellant has also assailed the order dated 19.05.2015 passed by learned Single Judge in SBCWP No. 3364/2015. 2. As per facts of the case, respondent-Maghar Singh filed a revenue suit under Sections 88 and 188 of the Rajasthan Tenancy Act before the Assistant Collector-cum-SDO, Hanumangarh to declare him "Khatedar" of land situated in Chak No. 3J DW Stone No. 91/232 ad-measuring 19 Bigha. In the suit, defendant Gurnam Kaur filed her written-statement/reply and after trial, the learned Assistant Collector, Hanumangarh dismissed the suit of the respondent No. 1 vide its judgment and decree dated 17.03.2011. In the suit, the respondent No. 1 Maghar Singh pleaded that he is son of Natha Singh and after death of his father, Natha Singh, his mother, namely, Gurnam Kaur, solemnized marriage with Jai Singh. At the time of marriage of his mother, three issues were already there. 3. As per respondent-Maghar Singh, he was adopted by late Sh. Jai Singh with whom his mother solemnized marriage after death of his father vide adoption deed dated 23.07.1968. It is also averred in the suit that a Will was executed in his favour along with his mother, Smt. Gurnam Kaur on 23.04.1973. In the said Will, Gurnam Kaur was given limited rights in the land in question for maintenance and all other rights were conferred to respondent Maghar Singh, therefore, the suit claiming "Khatedari" rights on the basis of adoption deed dated 23.07.1968 and Will dated 23.04.1973 executed by late Sh. Jai Singh in favour of Maghar Singh and his mother, Smt. Gurnam Kaur. 4. As narrated above, the Assistant Collector, Hanumangarh dismissed the suit vide judgment dated 17.03.2011, against that judgment, an appeal was preferred by respondent Maghar Singh before the Revenue Appellate Authority, Hanumangarh. Jai Singh in favour of Maghar Singh and his mother, Smt. Gurnam Kaur. 4. As narrated above, the Assistant Collector, Hanumangarh dismissed the suit vide judgment dated 17.03.2011, against that judgment, an appeal was preferred by respondent Maghar Singh before the Revenue Appellate Authority, Hanumangarh. The learned Revenue Appellate Authority, Hanumangarh allowed the appeal of respondent No. 1 Maghar Singh and set aside the judgment passed by the Assistant Collector, Hanumangarh vide its judgment dated 26.03.2012 and declared the respondent No. 1 Maghar Singh "Khatedar" of the land in question. 5. The judgment and decree passed by learned R.A.A., Hanumangarh dated 26.03.2012 was further challenged by the appellant/petitioner by way of filing appeal before the Board of Revenue, but the learned Board of Revenue dismissed the same vide judgment dated 23.04.2014 and confirmed the order dated 26.03.2012 passed by R.A.A., Hanumangarh. 6. The appellant/petitioner preferred a writ petition before learned Single Judge and challenged the orders dated 26.03.2012 and 23.04.2014 passed by learned R.A.A., Hanumangarh and learned Board of Revenue respectively. The learned Single Judge while considering the arguments and facts dismissed the writ petition without issuing even notices to the respondent/s and upheld the judgment passed by learned R.A.A. Hanumangarh and Board of Revenue, Ajmer. 7. The appellant/petitioner thereafter filed a review petition on 19.05.2015 on the ground that after decision, it has come to his knowledge that adoption deed which was executed in favour of respondent No. 1- Maghar Singh on 23.04.1968 was cancelled by Jai Singh on 14.09.1972, but the learned Single Judge refused to accept the review petition on the ground of delay of 250 days while rejecting application u/s 5 of the Limitation Act for condoning the delay. 8. In this appeal, appellant/petitioner has challenged the validity of orders dated 23.10.2017 passed in review petition, and order dated 19.05.2015 passed in SBCWP No. 3364/2015 on various grounds. 9. Learned counsel for the appellant vehemently argued that although there is concurrent finding of R.A.A., Hanumangarh, Board of Revenue Ajmer and the learned Single Judge that on the strength of adoption deed and Will, the respondent No. 1 Maghar Singh is entitled to be declared "Khatedar" but in fact, the said adoption deed was cancelled by late Sh. Jai Singh on 14.09.1972 and this fact was not brought on record for the reason that it was not within his knowledge. Jai Singh on 14.09.1972 and this fact was not brought on record for the reason that it was not within his knowledge. Learned counsel for the appellant further submitted that said fact was required to be considered by the learned single Judge, but it has not been considered in the review petition and the same was rejected only on the ground of delay. 10. Learned counsel for the appellant further submitted that although the grounds taken in the review petition was not existence right from the court of Assistant Collector, but the said fact is important fact, which can be considered by this Court while deciding this special appeal. 11. In support of his arguments, learned counsel for the appellant invited our attention towards judgment of this Court in the case of Jai Singh v. The State of Rajasthan reported in 1991 (2) RLW 172. While inviting attention towards the said judgment, it is submitted that even if the document of cancellation of adoption deed was not brought before the revenue courts and the learned Single Judge, but this fact can be taken into consideration for the purpose of this special appeal. It is thus prayed that on the basis of these facts, all the judgments impugned passed by learned R.A.A., Hanumangarh, Board of Revenue of Revenue and learned Single Judge may kindly be quashed and the appeal may kindly be allowed. 12. After hearing the learned counsel for the appellant, we have perused the judgment in the case of Jai Singh (supra) cited by learned counsel for the appellant. In our opinion, the scope of special appeal is very limited. The document which was not brought to the notice of the SDO, Hanumangarh, R.A.A., Hanumangarh, Board of Revenue and learned Single Judge of this Court in writ petition, cannot be taken on record and considered so as to quash the judgments, in which concurrent finding is given by the court below on the basis of pleadings. The document which was not brought to the notice of the SDO, Hanumangarh, R.A.A., Hanumangarh, Board of Revenue and learned Single Judge of this Court in writ petition, cannot be taken on record and considered so as to quash the judgments, in which concurrent finding is given by the court below on the basis of pleadings. The judgment in the case of Jai Singh (supra) cited by the learned counsel for the appellant is based upon altogether different facts because in the said case, question of taking document on record was not in question and as per settled principle of law, every document is required to be proved in the trial of the suit on the basis of evidence after exhibiting the said document, therefore, the prayer made by the learned counsel for the appellant to accept this appeal on the basis of the document whereby the adoption deed was cancelled, cannot be accepted. 13. In view of above discussion, no interference is called for in the concurrent findings of the revenue courts and the learned Single Judge. Accordingly, the instant special appeal is hereby dismissed.