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2023 DIGILAW 940 (RAJ)

LRs of Madanlal v. State of Rajasthan

2023-04-26

PUSHPENDRA SINGH BHATI

body2023
ORDER : (Pushpendra Singh Bhati, J.) This writ petition has been preferred claiming the following reliefs: "It is, therefore, most respectfully prayed on behalf of the Petitioners that this Writ Petition may kindly be allowed and: I. By an appropriate writ, order or direction, the Impugned Judgement dated 01.11.2022 (Annex.18) passed by the Learned Board of Revenue in Appeal No.1866/2011 be quashed and set aside; And II. By an appropriate writ, order or direction, the Impugned Judgement and Decree dated 11.03.2011 (Annex.12) passed by the Learned Revenue Appellate Authority in Appeal No.1/2010 be quashed and set aside; III. By an appropriate writ, order or direction, the Appeal (Annex.6) preferred by the Respondent No.2 be dismissed in toto and the judgement and decree dated 25.04.2005 (Annex.5) be upheld; IV. Any other appropriate order or direction, which this Hon'ble Court considers just and proper in the facts and circumstances of this case, may kindly be passed in favour of the Petitioner." 2. In bare essentials, the facts giving rise to this appeal are that original plaintiff-Madan Lal (since deceased, represented through his legal representatives (sons) in the present petition) claiming himself to be the sole khatedar (upon demise of all the other khatedars) and being in cultivatory possession, for a long period, of certain agricultural lands situated in Village Naradhana Tehsil Jayal, District Nagaur, had instituted a suit for declaration of khatedari rights and the rectification/correction in the revenue records. 2.1 The said suit was instituted before the Assistant Collector (S.D.O.), Jayal ('trial court'), while imp leading the State of Rajasthan, through the Tahsildar, Jayal, District Nagaur as the sole defendant. The said revenue authority, vide its judgement and decree dated 25.04.2005, decreed the suit ex parte in favour of the original plaintiff; as recorded in the said judgement and decree, despite issuance of summons, no one has put in appearance to contest the said suit on behalf the defendant, and therefore, the suit was proceeded ex parte, culminating into passing of the said judgement and decree. 2.2 The aforesaid judgement and decree was challenged by present respondent No.2 Kamal Kishore S/o Late Sh. Sada Sukh by preferring an appeal before the learned Revenue Appellate Authority, Nagaur. 2.2 The aforesaid judgement and decree was challenged by present respondent No.2 Kamal Kishore S/o Late Sh. Sada Sukh by preferring an appeal before the learned Revenue Appellate Authority, Nagaur. In the said appeal, it was alleged that the aforementioned suit, as instituted, ought not have been entertained by the learned trial court, as while filing the said suit, the original plaintiff, despite knowing the fact that Late Smt. Gulab Devi (wife of the original plaintiff's elder brother Late Sh. Sadasukh) - one of the khatedars, was survived by a son (Kamal Kishore) and two daughters (Smt. Radha Devi & Smt. Sarla Devi), did not array any of them as the party defendant(s) in the suit. 2.3 The learned Revenue Appellate Authority vide the impugned judgement dated 11.03.2011, while deciding the appeal, has quashed and set aside the judgement and decree dated 25.04.2005 passed by the learned trial court, while observing that the said suit was void ab initio. 2.4 Along with the appeal, an application under Order 41 Rule 27 of the Code of Civil Procedure (CPC) for taking certain documents on record, was also preferred by the respondent No.2 herein, followed by an application preferred under the same provision of law on behalf of the original plaintiff and his son, before the said revenue authority. Both the said applications, preferred by the parties, as recorded in the impugned judgement dated 11.03.2011, were allowed, and the documents, as mentioned in the said applications, being relevant for the purpose of adjudication, were taken on record. 2.5 Against the aforesaid impugned judgement dated 11.03.2011, the original plaintiff-Late Madan Lal and his son Suresh (one of the petitioners herein) preferred an appeal before the learned Board of Revenue for Rajasthan, Ajmer, alleging therein, amongst others, that despite the observation made by the learned Revenue Appellate Authority that the delay in filing the appeal before it did not deserve condonation, the said revenue authority, vide the impugned judgement dated 11.03.2011, has quashed and set aside the judgement and decree dated 25.04.2005 passed by the learned trial court. 2.6 The learned Board of Revenue, vide the impugned judgement dated 01.11.2022, dismissed the appeal preferred by the original plaintiff and his son, while upholding the aforesaid impugned judgement passed by the learned Revenue Appellate Authority. 2.6 The learned Board of Revenue, vide the impugned judgement dated 01.11.2022, dismissed the appeal preferred by the original plaintiff and his son, while upholding the aforesaid impugned judgement passed by the learned Revenue Appellate Authority. 2.7 Thus, being aggrieved by the impugned judgements passed by the learned Revenue Appellate Authority and the learned Board of Revenue, the petitioners-Rajendra and Suresh (sons of the original plaintiff-Late Madan Lal) have approached this Hon'ble Court by preferring this petition, claiming the afore quoted reliefs. 3. Learned counsel for the petitioners, at the outset, raised an issue that since the respondent No.2 herein had filed the appeal before the learned Revenue Appellate Authority with an inordinate and unexplained delay of five years and without seeking leave of the said revenue authority, therefore, the learned Revenue Appellate Authority was not justified in law, in hearing and deciding the appeal on merits. 3.1 He further submitted that though the learned Revenue Appellate Authority, as recorded in the impugned judgement, was satisfied that the appeal before it was barred by limitation, and thus, in the given factual matrix, such an inordinate delay did not deserve condonation, but at the same time, the said revenue authority heard the arguments of the parties on merits and allowed the appeal of the respondent No.2 vide the impugned judgement dated 11.03.2011. Hence, as per learned counsel, on that count alone the impugned judgement dated 11.03.2011 is not sustainable in the eye of law, and as a consequence thereof, the impugned judgement 01.11.2022 passed by the learned Board of Revenue, whereby the determination made by the learned Revenue Appellate Authority was upheld, also deserves to be quashed and set aside. 4. Learned counsel for the petitioners tried to thwart the claim of the respondent No.2-Kamal Kishore, by submitting that though he was the son of elder brother (Sh. Sada Sukh) of the petitioners' father (Late Sh.Madan Lal/original plaintiff), but when the respondent No.2 was aged only four months, he was given under adoption to one Chandu Lal, and therefore, as per the law governing the field, by virtue of the adoption, the respondent No.2 deemed to have given up all his rights in respect of the property of his Late father; as regards, the two daughters of Late Sh. Sada Sukh, it was submitted that after their marriage, the daughters have relinquished all their rights in the property of their father. Sada Sukh, it was submitted that after their marriage, the daughters have relinquished all their rights in the property of their father. 4.1 Learned counsel also submitted that in the said backdrop, after the death of the petitioner's elder brother (Sh. Sada Sukh), Smt. Gulab Devi (since deceased) became the sole heir of her husband (Late Sh. Sada Sukh); meaning thereby, Late Smt. Gulab Devi and Late Madan Lal (original plaintiff and father of the petitioners herein) became the joint khatedars of the lands in question. 4.2 Learned counsel further submitted that as the factual matrix and the record of the case would unveil, after the demise of Late Smt. Gulab Devi, the petitioners' father Late Sh. Madan Lal was the only khatedar left, in respect of the lands in question. 4.3 Learned counsel thus submitted that neither the respondent No.2 nor anyone else was the necessary party to the aforementioned suit filed by the original plaintiff and his son, and therefore, the State of Rajasthan, through the Tahsildar, was arrayed as the sole defendant in the suit. Hence, as per learned counsel, once non-impleadment of the respondent No.2 in the suit was made, as per law, then in absence of such impleadment, the respondent No.2 had no locus standi to prefer an appeal against the judgement and decree passed by the learned trial court in favour of the original plaintiff and his son (petitioner-Suresh). 4.4 Learned counsel also submitted that that the respondent No.2 had approached the learned Revenue Appellate Authority with unclean hands, while concealing certain material facts, as on one hand, he concealed the factum of execution of the alleged Will dated 03.10.2001 in his favour by Late Smt. Gulab Devi and also the amendments made in the mutation records based on the said Will; while on the other, at a later stage of the appeal, the respondent No.2 came with a case that by virtue of the alleged Will and being the only son of Late Smt. Gulab Devi, he had become the owner of the property of the said Late Smt. Gulab Devi; in view of the recorded fact that long back, the respondent No.2, was given under adoption to one Chandu Lal, the respondent No.2 cannot claim himself to be the heir/son of Late Smt. Gulab Devi. 5. 5. On the other hand, learned counsel for the respondents, opposed the aforesaid submissions made on behalf of the petitioners. 5.1 As against the argument advanced on behalf of the petitioners regarding concealment of material facts on the part of the respondent No.2, learned counsel submitted that the respondent No.2 had not made any such concealment; rather the original plaintiff and his son petitioner-Suresh, despite knowing each and every fact relevant to the case, made a concealment of the material fact that earlier Late Smt. Gulab Devi had filed a revenue suit for partition in respect of the lands in question, wherein the original plaintiff-Late Sh.Madan Lal was arrayed as defendant. 5.1.1 As per learned counsel, both the parties in the said suit i.e. Late Smt. Gulab Devi and Late Shri Madan Lal (father of the petitioners) have entered into a compromise pertaining to the partition of the lands in question, and on the basis thereof, a compromise decree was passed by the concerned court on 27.12.1985 followed by necessary entries in the revenue records; as revealed from the record, the original plaintiff and his son, before the learned trial court, have intentionally and deliberately, with a view to grab the whole property in question, concealed the factum of passing of the said compromise decree; such concealment on the part of the original plaintiff and his son has also been recorded in the impugned judgements passed by the learned revenue authorities below. 5.2 Furthermore, as per learned counsel, the original plaintiff and the petitioners, at all times, were aware of execution of the registered Will dated 03.10.2001 as well as nomination No.515 in favour of the respondent No.2; copies whereof were placed on record by the respondent No.2 before the learned Revenue Appellate Authority; despite knowing such fact, the original plaintiff along with his son (petitioner-Suresh) have not imp leaded the respondent No.2 as party-defendant in the suit for declaration instituted by them before the learned trial court. 5.3 Thus, as per learned counsel, the learned trial court had passed the ex parte judgement and decree in favour of the original plaintiff and his son (petitioner-Suresh herein), without making due enquiry and verification about the surviving legal heir(s) of Late Smt. Gulab Devi. 5.3 Thus, as per learned counsel, the learned trial court had passed the ex parte judgement and decree in favour of the original plaintiff and his son (petitioner-Suresh herein), without making due enquiry and verification about the surviving legal heir(s) of Late Smt. Gulab Devi. Hence, learned counsel submitted that the suit decreed in favour of the original plaintiff and his son, as recorded in the impugned judgement passed by the learned revenue authority below, was void ab initio. 5.4 Learned counsel further submitted that the manner in which litigation (suit for declaration and entry in the revenue records), as launched by the original plaintiff and his son would reveal, the same was instituted with an ill intention to grab the whole property in question, including the ones belonging, by virtue of the aforementioned registered Will, to the respondent No.2. Thus, as per learned counsel, though initially the original plaintiff and his son were successful in getting the desired relief from the learned trial court, but the same was set at naught by the learned Revenue Appellate Authority, vide the impugned judgement dated 11.03.2011, followed by affirmation thereof by the learned Board of Revenue vide the impugned judgement dated 01.11.2022, and rightly so. 5.5 Learned counsel thus, submitted that the learned revenue authorities below have passed the impugned judgements, after taking into due consideration the overall facts and circumstances of the case and after duly appreciating and analyzing the evidence placed on record before them. 6. Heard learned counsel for the parties as well as perused the record of the case. 7. This Court observes that vide the impugned judgement dated 11.03.2011, the learned Revenue Appellate Authority had declined to condone the delay in filing the appeal before it by the respondent No.2; however, since as a consequence of the apparent irregularities unveiled from the record, the suit filed by the original plaintiff and his son (petitioner-Suresh) was declared as void ab initio, therefore, the said revenue authority below passed the impugned judgement in favour of the respondent No.2. Thus, the issue of limitation, as raised on behalf of the petitioners, does not hold good. 8. Thus, the issue of limitation, as raised on behalf of the petitioners, does not hold good. 8. This Court further observes, as recorded in the impugned judgements, that the factum of passing of the aforementioned compromise decree in the year 1985, was deliberately concealed by the original plaintiff and his son, while filing the suit for declaration of khatedari right, before the learned trial court. 8.1 This Court also observes that the learned revenue authorities below in the impugned judgements have rightly observed that on count of non-impleadment of the heir(s) of Late Smt. Gulab Devi in the suit filed by the original plaintiff and his son before the learned trial court, the same was void ab initio, as the heir(s) of Late Smt. Gulab Devi, vide the ex parte decree, were deprived of their right of hearing, before passing of the judgement and decree, and the same, thus violated, amongst others, the principles of natural justice, as on count of such non-impleadment, the respondent No.2 could not be served with any notice of the suit instituted by the original plaintiff and his son. 9. Apart from what has been observed above, this Court is of the firm opinion that once the original plaintiff and Late Smt. Gulab Devi have entered into a compromise in relation to the revenue suit for partition instituted by Late Smt. Gulab Devi and on the basis thereof, the concerned revenue authority had passed the compromise decree dated 27.12.1985, in respect of the lands in question, then no cause of action or occasion can be said to have arisen to the original plaintiff and his son for instituting the subsequent suit, that too, without making any disclosure of such compromise decree and without imp leading any of the heirs of Late Smt. Gulab Devi as party-defendant in the said suit. 9.1 This Court is thus of the opinion that once the rights of the parties, in respect of the subject lands in question, have been determined vide the compromise decree passed in the year 1985, followed by the consequential entries in the revenue records, then the subsequent suit, as filed by the original plaintiff and his son before the learned trial court, was void ab initio, as already observed by the learned revenue authorities below, in the impugned judgements. 10. 10. In light of the aforesaid observations, this Court does not find any legal infirmity in the well reasoned speaking judgements impugned herein, passed by the learned revenue authorities below, so as to warrant any interference therein. 11. Consequently, the present petition is dismissed. All pending applications stand disposed of.