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2020 DIGILAW 455 (RAJ)

Laxman Singh v. Sayar Singh

2020-03-02

MAHENDAR KUMAR GOYAL

body2020
JUDGMENT 1. The petitioner assails the validity of the judgment and decree dated 14.02.2019 passed by the Board of Revenue, Ajmer in Appeal/Decree/TA/3788/2013/Sikar, whereby the appeal preferred by the respondents against the judgment dated 31.05.2013 passed by the Revenue Appellate Authority, has been allowed and the judgment and decree passed by the Court of Assistant Collector, Sikar dated 23.08.2010 has been affirmed. 2. The facts in brief are that the petitioner/plaintiff filed a suit for declaration, permanent injunction and correction of entries against the respondents qua the land of Khasra Nos.247, 248, 249 and 250 in village Mundwara, Tehsil Sikar submitting that late Phool Singh was its recorded Khatedar and the plaintiff being his adopted son, was entitled to be declared Khatedar of the land in question after his death. The respondents in their written statement submitted that the petitioner has never gone in adoption to late Phool Singh. On the basis of pleadings of the parties, the Court of Assistant Collector, Sikar framed issues inter-alia the issue as to whether, the plaintiff is adopted son of late Phool Singh. The Court of Assistant Collector, Sikar, vide its judgment and decree dated 23.08.2010, dismissed the suit recording a finding that the plaintiff failed to establish that he was adopted son of late Phool Singh. The appeal preferred by the petitioner against the judgment dated 23.08.2010 was allowed by the Court of Revenue Appellate Authority, Bikaner vide its judgment dated 31.12.2013. The second appeal preferred by the respondents herein, has been allowed by the Board of Revenue, Ajmer Rajasthan vide its judgment and decree dated 14.02.2019 holding that the Revenue Court was not competent to declare the petitioner as adopted son of late Phool Singh, which is impugned herein. 3. Assailing the judgment dated 14.02.2019, the learned counsel for the petitioner submitted that the Board of Revenue did not appreciate that petitioner's adoption by late Phool Singh having been proved on the basis of the documentary evidence, the question of adoption was rendered an ancillary issue for decision of the suit which primarily was for declaration and permanent injunction. He contended that the petitioner was recorded as Khatedar of the land left behind by late Phool Singh being his adopted son in respect of khasra numbers other than the disputed khasra numbers and therefore his adoption remained unchallenged. He contended that the petitioner was recorded as Khatedar of the land left behind by late Phool Singh being his adopted son in respect of khasra numbers other than the disputed khasra numbers and therefore his adoption remained unchallenged. He, therefore, prayed that the judgment dated 14.02.2019 be set aside and the judgment dated 31.12.2013 passed by the Revenue Appellate Authority be restored. Learned counsel for the petitioner relied upon the judgment of a coordinate Bench of this Court in Narayan & Ors. Versus State of Rajasthan & Ors. 2006 (2) DNJ (Raj.) 964 to emphsize that where the adoption is undisputed, it is ancillary issue or incidental issue and not main issue. 4. Per contra, learned counsel appearing for the respondents submitted that the Court of Assistant Collector, Sikar has recorded a categorical finding that the petitioner failed to prove that he was adopted son of late Phool Singh and the learned Board of Revenue has committed no error in recording a finding that the Revenue Courts are bereft of jurisdiction in declaring a person to be adopted in absence of admitted documents and it is the Civil Court only which can declare such status of a person. The learned counsel for the respondents relied upon the judgment of the Division Bench of this Court dated 15.03.2016 in Ram Kishore and Ors. Versus Board of Revenue and Ors. D.B. Special Appeal (Writ) Petition No. 1188/2015 and another connected matter and the judgment of a co-ordinate Bench of this Court dated 11.04.2012 in Ramdeva and Ors versus Shri Ramsukha and Ors. S.B. Civil Writ Petition No.1915/2012 to buttress his submission that it is the Civil Court only which has jurisdiction to declare the status of a person as adopted son on appreciation of evidence and not the Revenue Court. Heard learned counsels for the parties and perused the record. 5. A perusal of the pleadings of the parties and material on record reveal that it was a disputed question as to whether the petitioner was adopted son of late Phool Singh or not and there was no such admitted document on record on the basis of which the contention of the learned counsel for the petitioner that the issue of adoption was rendered an ancillary issue, can be countenanced. It is trite law that the declaration as to valid adoption on appreciation of respective evidence can be made by a Civil Court only. A Larger Bench of the Hon'ble Apex Court in case of Ramchandra Dagdu Sonavane (Dead) By Lrs. And Others versus Vithu Hira Mahar (Dead) by Lrs. And Others, (2009) 10 Supreme Court Cases, 273 held as under:- "As regards whether there is valid adoption or not, that question pertains to the status and legal character of an individual, which falls within the purview of Section 34 of the Specific Relief Act, 1963, and a suit for declaration before a civil court is maintainable. Therefore, the question whether a particular person has been given in adoption or not is different from whether a person has hereditary interest or rights in respect of a watan property. If this distinction is drawn, there is no exclusion of civil courts' jurisdiction under the Act. When a person claims on the basis of adoption, such an adoption cannot be decided by the Collector as the same involves legal status/character of a person which can only be decided by the civil court. Whether Vithu is an adopted son or not is concluded and decided in OS No. 104 of 1953. A specific issue had been framed and a finding was recorded though it was a suit for injunction and the findings on this issue has been confirmed by the appellate court and by the High Court in regular second appeal." 6. Relying upon the dictum of the Hon'ble Apex Court, a coordinate Bench of this Court in Ramdeva and others (supra) held as under:- "In my considered opinion, the order passed by the Board of Revenue setting aside the order passed by the RAA and restoring the order passed by the Assistant Collector is liable to be sustained primarily in view of the fact that the whole suit laid by Kesra in the first instance for correction of revenue entries and permanent injunction against Ramsukha and Birdya was based on Kesra's alleged adoption by the deceased Kishnya. The fact of adoption could not have been gone into by the RAA- a revenue court as the question of adoption relates to the legal character and status of a person and can only be decided by a civil Court. The fact of adoption could not have been gone into by the RAA- a revenue court as the question of adoption relates to the legal character and status of a person and can only be decided by a civil Court. Reference in this regard can be had to the judgment of the Hon'ble Supreme Court in the case of Ramchandra Dagdu Sonavane (dead) by LRs. and Ors. Vs. Vithu Hira Mahar (dead) by LRs. & Ors. [ (2009) 10 SCC 273 ] wherein the Hon'ble Supreme Court has held that the question whether the adoption is valid or not pertains to the status and legal character of an individual, which falls within the purview of Section 34 of the Specific Relief Act, 1963. The Apex Court further held that when a person claims on the basis of adoption, such a question cannot be decided by the Collector and can only be decided by a civil Court. " 7. In view of the fact that the issue of adoption of the petitioner by late Phool Singh was under dark clouds and there was no such undisputed document on record to establish the adoption of the petitioner conclusively, I am of the considered opinion that the Board of Revenue has committed no error in holding that it is the Civil Court only which could declare the status of the petitioner as adopted son of late Phool Singh after critically analysing the evidence of the parties and not the Revenue Court. Resultantly, the writ petition is dismissed being devoid of merit.