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Udaisingh Vs. Smt. Chattar Kanwar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Writ Petition No. 477 of 1967
Judge
Reported in1975WLN(UC)215
AppellantUdaisingh
RespondentSmt. Chattar Kanwar and ors.
Excerpt:
.....has jurisdiction to decide question regarding adoption.;it is therefore quite clear that the board of revenue did not examine the petitioner's arguments regarding his claim to adoption, to the extent they were admissible in the second appeal, under the mistaken impression that that was a matter for trial in a civil court.;(b) remand - important argument not examined under mistaken impression of law--case sent back for reheating. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on..........decree of the sub divisional officer were set aside the petitioner went in second appeal to the board of revenue but it was dismissed by judgment ex. 3 dated january 27, 1967. he has therefore approached this court for a redress of his grievance by way of certiorari.2. it has been argued by mr. ganpat singh, learned counsel for the petitioner, that the learned members of the board of revenue commuted an error of law apparent in the face of the record in their impugned judgment ex. 3 dated january 27, 1967, inasmuch as they did not examine the petitioner's arguments, in the second appeal before them, on the question of adoption order the mistaken impression that that was a matter for trial before a civil court. it has been pointed out that it has been held by this court in its bench.....
Judgment:

P.N. Shinghal, J.

1. This is a petition by Udai Singh, who was plaintiff in suit No. 23 of 1962, in the court of Sub divisional Officer, Nimbahera, for declaration, possession and permanent injunction, against Smt. Chattar Kanwar, respondent No. 1, and Ratan Singh, respondent No. 2. The petitioner claimed that he was taken in adoption by the said Smt. Chattar Kanwar after the death of her husband Jawan singh, that he was the khatedar tenant of the suit lands situated in village Fachar Solanki, and that the gift deed executed in respect of those lands by Smt. Chattar Kanwar on March 1, 1962 was invalid. The suit was decreed by the Sub divisional Officer by his judgment Ex. 1 dated July 18, 1963, It was held by him that the petitioner was the adopted son of the aforesaid Jawan Singh and that he hid acquired khatedari rights in the suit lands. An appeal was preferred to the Revenue Appellate Authority which was allowed by judgment Ex. 2 dated September 14, 1964 and the judgment and decree of the Sub divisional Officer were set aside The petitioner went in second appeal to the Board of Revenue but it was dismissed by judgment Ex. 3 dated January 27, 1967. He has therefore approached this Court for a redress of his grievance by way of certiorari.

2. It has been argued by Mr. Ganpat Singh, learned Counsel for the petitioner, that the learned members of the Board of Revenue commuted an error of law apparent in the face of the record in their impugned judgment Ex. 3 dated January 27, 1967, inasmuch as they did not examine the petitioner's arguments, in the second appeal before them, on the question of adoption order the mistaken impression that that was a matter for trial before a civil court. It has been pointed out that it has been held by this Court in its Bench decision in Chimna v. the Board of Revenue, Rajasthan and Anr. ILR (1956) 6 Rajasthan 323 that the revenue court concerned has full jurisdiction to decide any question of status such as the validity or other vise of an adoption, so long as that question arises in the suit as an ancillary to or in support of the claim.

3. It is not in dispute before us that the view taken in the aforesaid decision of this Court in Chimna's case ILR (1956) 6 Rajasthan 323 is correct, and that it was permissible for the Board of Revenue to examine the arguments, to the extent they were permissible in the second appeal before them, on the question of the petitioner's adoption. All that has been argued by Mr. Lodha is that the finding of the Revenue Appellate Authority on the question of adoption was not challenged before the Board of Revenue, that it could not be challen at all in second appeal as it was a finding of fact, and that there h no occasion for interfering with the impugned judgment as substantial justice has been done to the parties.

4. It appears from the record that it was urged before the learned members of the Board of Revenue, in the aforesaid second appeal, that if the petitioner claimed the suit lands on the basis of adoption, he should have gone to the civil courts for his relief The learned members of the Board of Revenue accepted the argument and held that 'if Udai Singh contested on the basis of adoption he should have gone to civil courts'. It is therefore quit clear that the Board of Revenue did not examine the petitioner's arguments regarding his claim to adoption, to the extent they were admissible in the second appeal, under the mistaken impression that was matter for trial in a civil court. As has been pointed out by Mr. Ganpat Singh, the law on the point has been examined in Chimna's case ILR (1956) 6 Rajasthan 323. in almost similar circumstances, and it has been held as follows:

We are if opinion that where such question is raised as ancillary to or in support of claim to or in support of claim 10 land or tenancy and where the suit for the land or tenancy can properly be filed in the revenue court, that court his full authority to decide all such questions of status.... Suffice it to say that where a person is out of procession and files a suit properly in a revenue court for possession or where a person files a suit for any right that he can properly claim and for which be can properly file a suit in the revenue court, that court has full jurisdiction to decide any question of status in case that question arises in the (sic)....

It has accordingly been held that the revenue courts have full jurisdiction to decide about the validity or otherwise of the adoption in question. As we have stated, the correctness of this view has not been assailed before us and we are not required to re-examine it.

5. It follows, that the petitioner was entitled to urge, in his second appeal before he Board of Revenue, his argument on the question of hit adoption by Smt. Chattar Kanwar, respondent No. 1, to the extent permissible by way of second appeal, and the learned members of the Board of Revenue committed an error of law apparent on the face of the record in ruling out a consideration of that argument under the impression that that was a matter for trial by a civil court.

6. We are unable to think that there is say justification for the argument of Mr. Lodha that the finding of the Revenue Appellate Authority on the question of the petitioner's adoption was not challenged because the Board of Revenue. As has been stated, the petitioner preferred he second appeal as as he felt Aggrieved against the finding on the question of his adoption, and one of the argument to which reference has been made in the impugned judgment Ex. 3 was that under the Tonk Land Revenue Regulations Sent. Chattar Kanwar could adopt any person without asking for the sanction of the Tork Darbar. There is therefore no justification for the argument that there was no such challenge before the Board of Revenue. It is true that the scope of arguments in a second appeal was limited by the provisions under which that appeal was preferred before the Board of Revenue, but there is no justification for the argument that it was not permissible to advance any arguments at all on the question of adoption. There is also no justification for the remaining argument of Mr. Lodha that substantial justice has been done in the case for, as has been stated, an important argument of the petitioner was not examined under a mistaken impression of the law.

7. In the result, the impugned judgment Ex. 3 dated January 27, 1967 of the Board of Revenue, is quashed sod the Board is directed to re-hear and decide the second appeal afresh according to the law. The petitioner will be entitled to his costs from the respondents.


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