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Jhabar Ram Vs. Board of Revenue and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Judge
Reported in2009(3)WLN181
AppellantJhabar Ram
RespondentBoard of Revenue and ors.
DispositionPetition allowed
Excerpt:
.....two sons of 'a'--mutation of land in disputed were opened in names of respondents no. 4 and 5 only excluding 's'--after death of 's', petitioner filed suit claiming 1/3rd share in disputed land--land in question are ancestral--adoption of petitioner by 's' was not disputed by respondents no. 4 and 5--held, revenue appellate authority rightly decreed suit filed by petitioner. - - shera and a note to this effect was made in the relevant mutation register and thereafter, the relevant entries were made in jamabandi as well. 4 and 5 herein, in the lands situated in villages punsisar and somsisar as well, which was refused......of this court, the learned board of revenue has seriously erred in setting aside the judgment and decree passed by the raa, rajgarh, whereby the judgment and decree passed by the assistant collector, rajgarh dismissing the suit preferred by the petitioner has been set aside and the suit preferred by him for declaration of his rights has been decreed.12. in view of the discussion above, the order impugned passed by the board of revenue deserves to be quashed and set aside.13. in the result, the writ petition succeeds, it is hereby allowed. the impugned order dt. 10.07.1996 passed by the board of revenue, rajasthan is set aside and the judgment and decree dt. 10.04.1991 passed by the raa, bikaner decreeing the suit preferred by the petitioner before the assistant collector, rajgarh is.....
Judgment:

Sangeet Lodha, J.

1. This writ petition is directed against order dt. 10.07.1996 passed by the Board of Revenue, Rajasthan, whereby the appeal preferred by the respondent No. 4 Shri Lachhu Ram against the judgment and decree dt. 10.04.1991 passed by the Revenue Appellate Authority (in short 'RAA' hereinafter), Bikaner has been allowed. Consequently, the judgment and decree dt. 28.02.1986 passed by the Assistant Collector, Rajgarh dismissing the suit preferred by the petitioner, stands restored.

2. The brief facts relevant for the present purpose are that late Shri Aad Ram was holding 106 bighas of land in Punsisar and Somsisar, Tehsil Taranagar, District Churu. He was also holding 75.15 bighas of land in Tidiasar, Tehsil Nohar, District Sri Ganganagar. Late Shri Aad Ram was survived by four sons namely, Girdhari, Lachhu Ram, Farsa Ram and Oma Ram. Out of these four sons, Oma Ram expired issue less . Farsa Ram also expired living behind his widow Smt. Shera. The petitioner herein is adopted son of Smt. Shera.

3. After the death of Shri Aad Ram, the land measuring 75.15 bighas situated in village Tidiasar was mutated in the names of Girdhari and Lachhu Ram 2/3 share and Smt. Shera, widow of Farsa Ram 1/3 share vide mutation opened on 22.08.1956. However, the mutations in respect of the lands situated in villages Punsisar and Somsisar were opened in the names of Girdhari and Lachhu Ram only excluding Smt. Shera. The mutation in respect of the land situated in Punsisar and Somsisar were opened after the mutation opened in respect of the land in village Tidiasar.

4. After the death of Smt. Shera, the mutation in respect of the lands Tidiasar was opened in the name of the petitioner being adopted son of Smt. Shera and a note to this effect was made in the relevant mutation register and thereafter, the relevant entries were made in Jamabandi as well.

5. The petitioner demanded 1/3rd share from the Lachhu Ram and Girdhari, respondents No. 4 and 5 herein, in the lands situated in villages Punsisar and Somsisar as well, which was refused. In these circumstances, the petitioner filed a suit for declaration and correction of entries in the Court of Assistant Collector, Rajgarh. The suit was dismissed vide judgment and decree dt. 28.02.1986 on the ground that the name of the petitioner or Smt. Shera does not find mention in the Revenue Record and Smt. Shera was never in possession of the lands in question.

6. Aggrieved by the judgment and decree dt. 28.02.1986 passed by the Assistant Collector, Rajgarh, the petitioner preferred an appeal before the RAA , Bikaner . The RAA arrived at the conclusion that when 1/3rd share was given to Smt. Shera being the widow of Shri Farsa Ram in the land situated in village Tidiasar, there was no reason to deny her share in the lands of villages Punsisar and Somsisar. Accordingly, the appeal preferred by the petitioner was allowed and the suit was decreed by the RAA vide judgment and decree dt. 10.04.1991.

7. Aggrieved by the judgment and decree dt. 10.04.1991, second appeal was preferred by the respondent No. 4 before the Board of Revenue which has been allowed by the order impugned dt. 10.07.1996 and the judgment and decree dt. 10.04.1991 passed by the RAA, Bikaner has been set aside and consequently, the judgment and decree dt. 28.02.1986 passed by the Assistant Collector, Rajgarh stands restored. Hence, this petition.

8. The learned Counsel for the petitioner submitted that the learned Board of Revenue has seriously erred in holding that since Smt. Shera did not challenge the mutations entered in the names of respondents No. 4 and 5 during her lifetime, therefore, the same cannot be challenged by her adopted son, the petitioner herein. The learned Counsel submitted that the fact that the name of Smt. Shera was not there in the revenue record cannot be a ground for rejecting the petitioner's prayer for declaration of his rights. The learned Counsel submitted that the facts that Shri Farsa Ram was real brother of the respondents No. 4 and 5 and Smt. Shera was his widow and the petitioner is adopted son of Smt. Shera are not in dispute. Accordingly, it is submitted by the learned Counsel that the lands being ancestral in the name of late Shri Aad Ram, Farsa Ram had birth right and after his death, his widow was entitled to a share in the property and after the death of the widow, the petitioner, her adopted son is entitled to 1/3rd share in the lands in question.

9. Per contra, the learned Counsel Mr. K.N. Joshi, appearing on behalf of respondents No. 4 and 5 submitted that Smt. Shera was alive till the year 1972 but she did not claim any share in the lands in question and she never remained in possession of the lands during her lifetime therefore, the petitioner claiming himself to be her adopted son is not entitled for any share in the lands in question. It is submitted by the learned Counsel that even according to the petitioner, he was adopted by Smt. Shera on 22.12.1962 and Smt. Shera was alive till the year 1972 but she did not file any suit for declaration of her rights in the lands in question therefore, at this belated stage, the petitioner cannot claim declaration of his khatedari rights in the lands in question. Accordingly, it is submitted that the learned Board of Revenue has committed no error in setting aside the judgment and decree dt. 10.04.1991 passed by the RAA, Bikaner.

10. I have considered the rival submissions and perused the record.

11. Admittedly, the lands in question are ancestral and therefore, the respondent Nos. 4 and 5 and late Shri Farsa Ram had a birth right to have share in the lands. It is also not in dispute that after the death of Shri Farsa Ram, his widow Smt. Shera was entitled for 1/3rd share in the lands in question. The adoption of the petitioner by Smt. Shera was not disputed by the respondent No. 4 and 5 before the learned trial Court and therefore, no issue was framed in this regard. Therefore, the petitioner's entitlement for 1/3rd share in the land being adopted son of Smt. Shera cannot be disputed. It is not the case of the respondents that any partition has taken place amongst the legal heirs of Shri Aad Ram and in that Smt. Shera could get only 1/3rd share in the land situated at village Tidiasar and no share was allotted to her in the lands situated in villages Punsisar and Somsisar. Merely because inadvertently, the lands situated in village Punsisar and Somsisar have been recorded in the names of respondents No. 4 and 5 only, the share of Smt. Shera and consequently, the share of the petitioner being adopted son of Smt. Shera does not stand extinguished. Neither the fact that her name has not been entered in the Revenue Record nor the fact that she was not in actual possession of the land for all these years can be a ground for denial of her due share in the lands in question for which she was legally entitled. In this view of the matter, in considered opinion of this Court, the learned Board of Revenue has seriously erred in setting aside the judgment and decree passed by the RAA, Rajgarh, whereby the judgment and decree passed by the Assistant Collector, Rajgarh dismissing the suit preferred by the petitioner has been set aside and the suit preferred by him for declaration of his rights has been decreed.

12. In view of the discussion above, the order impugned passed by the Board of Revenue deserves to be quashed and set aside.

13. In the result, the writ petition succeeds, it is hereby allowed. The impugned order dt. 10.07.1996 passed by the Board of Revenue, Rajasthan is set aside and the judgment and decree dt. 10.04.1991 passed by the RAA, Bikaner decreeing the suit preferred by the petitioner before the Assistant Collector, Rajgarh is restored. No order as to costs.


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