Rajasthan High Court - Jaipur
Ranglal vs Smt Bhawri Devi &Ors; on 31 August, 2017
Author: Mn Bhandari
Bench: M.N.Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil Writ Petition No. 9968 / 2016
Ranglal S/o Dhannalal by Caste Jat, Village Morda Tehsil,
Maujamabad, Dist. Jaipur
----Petitioner
Versus
1. Shrimati Bhawri Devi W/o Chitar
2. Shrimati Ganga W/o Birdaram, Both by Caste Jat R/o Chota
Narena, Tehsil Kishangarh, Dist. Ajmer
3. State of Rajasthan Through Tehsildar, Maujmabad Dist. Jaipur
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. Harshad Kapoor for Mr. Rajesh Kapoor
For Respondent(s) : Mr. Jinesh Jain
_____________________________________________________
HON'BLE MR. JUSTICE M.N.BHANDARI
Judgment
31/08/2017
By this writ petition, a challenge is made to the order dated
25th May, 2009 passed by the Sub-Divisional Officer, Dudu, District
Jaipur followed by order dated 26 th November, 2009 passed by the
Revenue Appellate Authority and lastly the order dated 30 th June,
2016 passed by the Board of Revenue, Ajmer.
It is a case where suit for declaration and permanent
injunction was filed by the respondents to claim partition in the
land belonging to their father. The suit was decreed by the SDO
court in favour of the plaintiff-respondents. The petitioner
preferred an appeal before the Revenue Appellate Authority but it
was dismissed followed by dismissal of the appeal by the Board of
Revenue.
(2 of 4)
[CW-9968/2016]
Learned counsel submits that suit was not maintainable to
claim right in the property belonging to HUF of Dhannalal. It is
admitted by the petitioner that he is adopted son of Dhannalal,
whereas, respondents are daughters. A reference of the
amendment under Section 6 of the Hindu Succession Act, 1956
(for short "the Act of 1956") has been given. It is to show that
rights of the daughters accrued pursuant to it are prospective in
nature thus could not have been applied. It is a case where death
of Dhannalal took place prior to the amendment in the Act of
1956. In view of the above, Section 6 of the Act of 1956, as
amended, should not have been applied to the present case so as
to recognise rights of the daughters when Dhannalal died, prior to
the amendment in the Act of 1956, in the year 2005.
Learned counsel further submits that suit for declaration
simplicitor was not maintainable because no other relief was
claimed by the respondents. In view of the above, suit preferred
by the plaintiff-respondents should have been dismissed.
It is lastly urged that land in dispute was recorded in the
name of petitioner in the year 1975, whereas, suit was preferred
in the year 2005 i.e. after lapse of 30 years. In view of the above
also, orders passed by the revenue courts deserve to be set aside.
I have considered the submission made by learned counsel
for petitioner and perused the record.
The first argument raised by learned counsel for petitioner is
in reference to amendment in Section 6 of the Act of 1956 where
rights have been given to the daughters in the ancestral property.
The amendment has been taken to be prospective but would apply
(3 of 4)
[CW-9968/2016]
only to the ancestral properties and not to the self-acquired
properties which are governed by Sections 9 and 10 of the Act of
1956. The finding of the revenue courts shows that land in dispute
to be self-acquired property of Dhanna and not HUF of Dhanna, as
stated by learned counsel for the petitioner. It was not ancestral
property so as to apply Section 6 of the Act of 1956. The first
argument raised by learned counsel for the petitioner cannot be
accepted.
The second issue is regarding maintainability of the suit. It is
stated that suit was filed without any other relief than of
declaration. A reference of the judgment of the Apex Court in the
case of Prakash & Ors. Vs. Phulavati & Ors., reported in
(2016) 2 SCC 36 has been given where possession was not
claimed along with declaration thus suit was dismissed.
I have gone through the suit preferred by the respondents.
It was not for declaration simplicitor but for injunction as well. The
respondents shown their possession thus sought restraining order
against the petitioner. In such cases, possession was not required
to be claimed by the respondents. In any case, suit was not
simplicitor for declaration but for other relief also. Accordingly,
even second argument raised by learned counsel for petitioner
cannot be accepted.
The third argument raised by learned counsel for petitioner is in reference to delay in maintaining the suit. The perusal of issues framed by the revenue court does not show issue about the delay. The petitioner did not challenge the issues so framed by the revenue courts by taking remedies, rather, led evidence in (4 of 4) [CW-9968/2016] reference to the issues framed and decided. The argument in reference to delay was not raised before any of the revenue courts. In view of the above, petitioner cannot be allowed to raise argument contrary to the issues framed by the courts below.
In the light of the discussion made above, I do not find any merit in the writ petition so as to cause interference in the impugned orders. It is, accordingly, dismissed.
(MN BHANDARI) J.
FRBOHRA