Rajasthan High Court - Jaipur
(Shyam Lal (Since Deceased) Through Lrs ... vs . Om Prakash & Ors.) on 16 April, 2015
Author: Alok Sharma
Bench: Alok Sharma
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR O R D E R IN S.B. CIVIL WRIT PETITION NO.16306/2010 (Shyam Lal (since deceased) through LRs & Anr. Vs. Om Prakash & Ors.) Date of Order : April 16th, 2015 HON'BLE MR. JUSTICE ALOK SHARMA Mr. Suresh Pareek, Senior Advocate with Mr. N.C. Sharma & Mr. Shankar Lal, for the petitioners. Mr. Dharmendra Pareek, Addl.GC for the State. Mr. Manoj Bhardwaj ] for respondents. Mr. Amit Gupta ] Mr. Rajneesh Gupta ] Mr. S.B. Gupta ] Mr. D.D. Khandelwal ] Mr. Tarun Jain ] BY THE COURT:
The petitioners-defendants (hereinafter the defendants) are aggrieved of the judgment dated 02.11.2010, passed by the Board of Revenue, Rajasthan, Ajmer (hereinafter the Board) setting aside the judgment and decree dated 16.09.2009, passed by the Revenue Appellate Authority, Sawai Madhopur (hereinafter RAA) and restoring that of the Sub-Divisional Officer, Sawai Madhopur (hereinafter SDO) passed on 06.04.2009.
The respondents-plaintiffs (hereinafter the plaintiffs') laid a suit before the SDO, Sawai Madhopur stating that the plaintiffs and the defendants had a common ancestor, one Gangabishan. It was submitted that since the time of the common ancestor, the family was in possession of 12 bigha 13 biswas of agriculture land in village Kutalpura Jatan, Tehsil and District Sawai Madhopur in the khasra detailed (hereinafter the suit land). Subsequent to the death of the common ancestor, Ganga Bishan, with the coming into force the Rajasthan Tenancy Act, 1955 (hereinafter the Act of 1955) entries in the record of rights were made of those in possession and recorded as sub-tenants in respect of khasra Nos.71, 80, 76/2 and 76/3 in a jumbled up manner reflecting the name of the father of the plaintiffs, Sonaram in some of the khasras (i.e. 80 and 76/2) in Samvat 2013-2016 and not the others, as was so in respect of the fathers of the defendants, Birdya and Kalya in some of the khasras in issue Nos.71 and 76/3 and not the others. It was submitted that thus even though the khatedari recorded in the revenue records was not reflective of cultivatory possession, yet in the context of the fact of the suit land devolving upon both on the father of the plaintiffs and the fathers of the defendants from Gangabishan, the khatedari land partook the character of ancestral land in which each of the three sons of Gangabishan, i.e. Sonaram, Kalya and Birdya, as the eldest had equal rights. It was submitted that after Jamabandi of Samvat 2013 to 2016 equivalent to year 1956 to 1959 in respect of khasra Nos.80 and 76/3 in the name of the plaintiffs' father Sonaram, was unlawfully deleted from the record of rights and instead the khatedari in the said khasras reflected in the name of the fathers of the defendants. This, in the circumstances, entailed a dispute, resulting in the lodging of First Information Report dated 13.10.1999. Thereupon the matter was compromised on 18.10.1999 whereunder the share of the plaintiffs to an extent of 1/3 in the ancestral land ad measuring in the aggregate 12 bighas 13 biswas was admitted with an assurance of necessary correction being sought for in the revenue records to reflect the actual possession in equal measure on the ground. Yet, as agreed, the compromise was not effectuated for reasons of the failure of the defendants to facilitate the correction of revenue entries accordingly in terms of the compromise reflective of the longstanding arrangements on the ground. It was submitted that on or about 10.01.2001, on the defendants finally refusing to visit the Tehsildar's office for the required correction in the record of rights in terms of the compromise dated 18.10.1999 and contrarily seeking to restrain the plaintiffs from plowing the agriculture fields falling to their share and in their possession, the suit had to be laid for the reliefs as detailed hereinabove.
On service of notice of the plaint, the defendants filed a written statement of denial. It was submitted that the land in khasra Nos.71 and 80 belonged to Birdya and Kalya @ Kalu, the fathers of defendants, who admittedly were the brothers of the father of the plaintiffs i.e. Sonaram. Land in khasra No.76/3 was stated to be in the khatedari of Birdya alone as per mutation No.36 dated 20.02.1960 and following his death, mutation No.116 was opened in the name of the defendants. The compromise with the plaintiffs was denied and it was asserted that the suit land was not ancestral. The suit land was instead claimed to be self acquired property of the fathers of the defendants consequent to which the plaintiffs were stated to have no right, title or interest therein. Dismissal of the suit was sought.
On the basis of the pleadings of the parties, the SDO framed five issues, which are as under :
(1) ??? ????????? ???????? ???? ??0 71, 80, 76/1, 76/2, 76/3 ??? ???? 5 ??? ???? 12 ???? 13 ?????? ???? ????? ????????? ????? ?????? ??? ??????????? ?? ????????? ?? ?????????? ??? ???????? ???????? ?? ???????? ?? | (??????) (2) ??? ????? ???????? ?? ?????? ?????? ???? ???????? ? ??????? ??? ?? ????? ???? ??0 80, ???? 3 ???? 11 ?????? ??? ?? 1 ???? 3 ??????, ???? ??0 76/2 ???? 3 ???? ??? ?? 1 ???? 10 ??????, ???? ??0 76/3 ???? 3 ???? ??? ?? 1 ???? 10 ?????? ??? ???? 3 ??? ???? 4 ???? 3 ?????? ???? ????? ????????? ????? ?? ??????? ???????? ????? ????? ?? ??????? ?? | (??????) (3) ??? ??????????? ?? ?????? ????????? ???????? ???? ??0 71, 80, 76/2, 76/3, 76/1 ??? ???? 5 ???? 12 ???? 13 ?????? ???? ????? ????????? ????? ?? ??????? ???? ?? ???? ?? ??? ???? ???? ???? ? ?????? ?? ????? ????? ??? ???? ?????? ?? ???? ? ?? ????? ???????? ?? ? ?? ???? ???? ?? ????? ?? ??? ????? ?????????? ?? ?????? ????? ?? ??????? ?? | (??????) (4) ??? ????????? ???????? ???? ??0 71, 80, 76/3 ???? ????? ????????? ????? ?? ??????????? ?? ????? ????? ??? ???? ?????? ?? ???? ? ?? ????? ???????? ?? ? ?? ???? ???? ?? ?????? ? ?????? ???? ???? ?? ??? ?????? ?? ??????????? ????? ?????????? ?? ?????? ????? ?? ??????? ?? | (???????????) (5) ??? ?????? ?? ??? ???? ????? ??? ???? ????? ?? | (????????? ??0 3, 4 & 5) On the basis of the evidence, both oral and documentary, before him, the SDO decreed the plaintiffs' suit vide judgment and decree dated 06.04.2009 holding that the suit land was ancestral, the plaintiffs as successors of the common ancestor Gangabishan were entitled to be declared khatedars of the land ad measuring 4 bigha 3 biswas in khasra Nos.80, 76/2 and 76/3 out of the total of 12bigha 13 biswas situate in village Kutalpura Jatan, Tehsil and District Sawaimadhopur. A decree of partition and permanent injunction ensued for the plaintiffs as did for permanent injunction.
Aggrieved of the SDO's judgment and decree dated 06.04.2009, the defendants Shyam Lal and Bal Kishan laid an appeal before the RAA under Section 223 of the Act of 1955. The RAA vide its judgment and decree dated 16.09.2009 set aside the SDO's judgment and decree and dismissed the plaintiffs' suit. The plaintiffs thereupon took the matter to the Board by way of a second appeal against the RAA's judgment and decree dated 16.09.2009. By the impugned judgment and decree dated 02.11.2010, as stated hereinabove, the Board has set aside the RAA's judgment and decree and restored that of the SDO, Sawai Madhopur.
Mr. Suresh Pareek Senior counsel appearing with Mr. N.C. Sharma and Shankar Lal Sharma, for the defendants has submitted that the SDO as also the Board have committed a perversity in decreeing the plaintiffs' suit. It has been submitted that as the plaintiffs, the burden was on them to establish that the suit land was ancestral property and the mere weakness of the case of the defendants could not accrue to the plaintiffs' benefit. This was not done. No document of title or revenue record was exhibited to establish the khatedari of Gangabishan from who the plaintiffs claimed their rights through succession. It was submitted that in a suit for correction of entries, it was for the plaintiff to first establish that the entries earlier made in the record of rights were wrongfully and without just cause deleted and those of the defendants were substituted without an order of a competent court. It was also submitted that the SDO as also the Board overlooked the fact that khasra Nos.76/3 measuring 3 bigha was allotted to defendants' father Birdya, as a landless person under the provisions of the Rajasthan Land Revenue (Allotment of land for agricultural purposes) Rules, 1970 (hereinafter the Rules of 1970) and hence could not evidently partake the character of ancestral land and could therefore not be put to partition. Sr. Counsel then submitted that there was evidence on record to establish that the land in khasra Nos.71 and 80 were allotted to Birdya and Kalya, the fathers of the defendants on the basis of their long possession and consequently the plaintiffs did not have any right to claim partition also qua such land. Sr, Counsel required the Court to note and take into consideration the fact that the suit for partition, correction of revenue entries and permanent injunction was filed after a delay of 45 years from Samvat 2013-16 when the name of the plaintiffs' father Sonaram was reflected in the Jamabandies of khasra Nos.80 and 76/2. Sr. Counsel has emphatically submitted that the case of the plaintiffs substantially based on the purported compromise dated 18.10.1999 was unsustainable as the compromise deed was a forged document and even otherwise its contents completely vague. It was further submitted that even otherwise the purported compromise dated 18.10.1999 as a family settlement of sorts propounded by the plaintiffs was in the nature of a partition and for reasons of it being unregistered was inadmissible in evidence. Sr. Counsel submitted that in this view of the matter, the judgment and decree dated 06.04.2009, passed by the SDO, Sawai Madhopur was rightly quashed and set aside by the RAA, Sawai Madhopur under its judgment and decree dated 16.09.2009 and the Board committed a perversity and acted in excess of its jurisdiction in overturning the judgment and decree of the RAA and restoring that of the SDO. Mr. Suresh Pareek, Sr. Counsel, in support of the case, has relied upon the judgment of the Hon'ble Supreme Court in the case of Narendra Kante Vs. Anuradha Kante & Ors. [(2010) 2 SCC 77] as also the judgments of this Court in the cases of Nand Kishore & Ors. Vs. Smt. Rukmani Devi & Ors. [2012 (3) WLC (Raj.) 697], Shree Lal Vs. Board of Revenue & Ors. [2009 (2) RRT 867] and Raghunath Vs. The Board of Revenue & Ors. [2012 (2) WLC (Raj.) 391].
Counsels appearing for the plaintiffs have submitted that this Court in the exercise of its superintending jurisdiction under Article 227 of the Constitution of India, as the present petition should of necessity relate to in view of the proceedings not being original, should not interfere with the findings of fact arrived at by the SDO as upheld by the Board. It has been submitted that the question as to whether the nature of the suit land was ancestral or self acquired was a question of fact determinable on the basis of appreciation of evidence both documentary and oral on record. Counsels submitted that the SDO as the original court having considered the competing evidence and on appreciation thereof having come to a finding of fact that the suit land was ancestral land, there was no occasion for the RAA to take a contra view without just cause as was done in its judgment and decree dated 16.09.2009. The Board in the impugned judgment dated 02.11.2010 has in the circumstances had a re-look on the entire evidence on record and come to the conclusion that the suit land was indeed ancestral land. More Specific to the facts of the case, counsels have submitted that the case set up by the defendants before this Court with regard to the allotment of the suit land having been made to their fathers on the basis of an allotment under the Rules of 1970 is wholly new one and such a plea was not taken in the written statement before the trial court i.e. SDO's court and hence submissions in this writ petition based on the said purported allotment have to be overlooked. It was further submitted that revenue entries pertaining to Samvat 2013 to 2016 in respect of khasra No.80 as also 76/2 show that the name of the father of the plaintiffs, Sonaram was recorded as a co-tenant and in terms of Section 19 of the Act of 1955, Sonaram along with other co-tenant was entitled to have been and was conferred khatedari rights. But subsequently the said revenue entries were unauthorizedly and illegally altered. Reference has been made to the statement of one of the defendants before the SDO, Sawai Madhopur, one Shyam Lal, who admitted in his cross-examination that the suit land was indeed ancestral land. This categorical admission was binding on the defendants and clinched the plaintiffs' case. It has been further submitted that the disputes having arisen between the plaintiffs and the defendants, a FIR came to be lodged on 13.10.1999 whereupon the matter was compromised on 18.10.1999 admitting of the existing situation on the ground of the plaintiffs being in possession and use of 1/3rd share of the ancestral land and entitled to correction of revenue entries accordingly. Counsel submitted that there is no requirement in law for a family settlement in the form of a memorandum of past arrangement qua immovable property to be registered and even otherwise being signatory to the compromise dated 18.10.1999, the defendants were estopped from reneging thereon. Counsel further submitted that the arrangement recognized in the compromise dated 18.10.1999 was reflected in a site inspection of 11.07.2006 on an order of the Collector, Sawai Madhopur on a dispute between the plaintiffs and the defendants reaching his door. Report of the site inspection was submitted on 19.07.2006 and showed that the plaintiffs on the one hand and the defendants on the other were each in possession of their duly demarcated 1/3rd area of 12 bighas 13 biswas lands in khasra Nos.71, 80, 76/2 and 76/3. Counsel therefore emphatically submitted that the conclusions of the SDO and the Board on the evidence on record cannot be faulted and requiring this Court to re-appreciate the evidence in the exercise of powers under Article 227 of the Constitution of India is impermissible. The judgment of the Board rendered on 02.11.2010 being wholly within its jurisdiction and without any palpable perversity, the petition be dismissed, it was finally submitted.
Heard. Considered.
The jurisdiction of this Court under Article 227 of the Constitution of India is to be exercised where the orders / judgments impugned have been passed in grave dereliction of duty or in flagrant abuse of the fundamental principles of law by the court's below. It is equally well settled that the jurisdiction under Article 227 of the Constitution of India is wholly discretionary and interference with the order/s impugned is to be kept at the minimum and is not to be made until a clear failure of justice is made out. As held by the Hon'ble Supreme Court in Jai Singh & Ors. Vs. Municipal Corporation of Delhi & Anr. [(2010) 9 SCC 385], the jurisdiction of this Court under Article 227 of the Constitution of India is to be exercised with care, circumspection and caution and the Court where seized with a civil or revenue dispute ought not to usurp the jurisdiction of the regular courts to adjudicate contentious dispute about civil rights. In Management of Madurantakam Coop. Sugar Mills Ltd. Vs. S. Viswanathan [(2005) 3 SCC 193] the Hon'ble Supreme Court has held that where the findings in the impugned judgment are neither perverse nor vitiated for no evidence, interference is not called for at the hand of the court in the exercise of its superintending powers as the superintending court cannot review or re-appreciate the evidence upon which determination of lower courts is based.
In the context of the position of law as detailed hereinabove, the facts to which attention of this Court is drawn in the case at hand, are that the father of the plaintiffs, Sonaram and that of the defendants, Birdya and Kalya were the sons of one Gangabishan. No letter of allotment was on record before the trial court to establish title / khatedari in respect of the suit land on any of the contesting parties i.e. the plaintiffs and the defendants. What was instead on record were entries in revenue records in respect of various khasras, each entry reflecting the name either of the father of the plaintiffs along with another brother of his i.e. the fathers of the defendants or of the fathers of the defendants alone. It is thus apparent that the plaintiffs' case was not one without any evidence, but instead founded upon the fact that their father Sonaram and the fathers of the defendants i.e. Birdiya and Kalya as sons of Gangabishan had inherited the suit land from their father Gangabishan apparently on the basis of his possession.
I do not find much substance in the submission of the counsel for the defendants that the plaintiffs had failed to discharge their burden and establish that the suit land was ancestral land on basis of any documentary evidence. The Hon'ble Supreme Court in the case of R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P. Temple & Anr. [(2003) 8 SCC 752] has held that in respect of title of land the extent of proof needed is not necessarily absolute. Probabilities, once set up by the plaintiff on the basis of his evidence making out a prima facie case, and the failure of the defendants to discharge the onus thereafter are sufficient for a decree flowing for the plaintiff from such evidence. It has been thus held that the proof of title based on appreciation of evidence is a question of fact which can be answered on probabilities in the absence of clinching evidence based on a title document. In my considered opinion, the evidence on record where the name of the plaintiffs' father Sonaram was reflected in revenue entries of Samvat 2013 to 2016 in respect of khasra Nos.80 and 76/2, the compromise between the parties of 18.10.1999 which was on record, the report of the Tehsildar appointed as Commissioner by the Collector submitted on 19.07.2006 which established the fact that the plaintiffs and the defendants were in possession of their clearly demarcated 1/3rd share in the suit property admeasuring 12 bigha and 13 biswas as also the evidence of the defendant Shyam Lal admitting the suit land to be ancestralall made out a prima facie case of the suit property being ancestral. The defendants thereafter failed to discharge the onus such as by establishing before the trial court from the evidence on record that the suit land was in fact allotted to the fathers of the defendants or to themselves. The defendants were also not able to show from any evidence as to how and in what capacity, they came into their purported individual khatedari of the suit lands. The entries in the name of the fathers of the defendants in the revenue records by themselves in the context of the overall evidence laid by the plaintiffs were not sufficient to discharge the onus on the defendants to prove that the suit property was self acquired property of the fathers of the defendants and not ancestral property as contended by the plaintiffs. In fact, even the entries in the names of the Birdya and Kalya, buttressed the plaintiffs' case that they were so made by virtue of the devolution of Gangabishan's interest by way of possession as was also in the case of the plaintiffs' father in respect of khasra Nos.80 and 76/2 in the record of rights pertaining to Samvat 2013-16 whereafter it was wrongly and illegally entered in the name of Birdya and Kalya without just cause.
In the facts and circumstances of the case, I am of the considered opinion that the SDO, Sawai Madhopur rightly concluded on the appreciation of evidence before him that the suit property was ancestralflowing from the common ancestor Gangabishan and not the self acquired of the fathers of the defendants i.e. Birdya and Kalya. The plaintiffs in exclusive possession of 1/3rd share of the suit property duly demarcated as per the report of the Tehsildar filed on 19.07.2006 but under threat of dispossession and restrain on agriculture operation were entitled to their suit for partition being decreed and to correction in the revenue entries, aside of the defendants being injuncted from interfering with their possession, occupation and enjoyment of the land falling to their share. I am also of the considered view that the conclusions of SDO as upheld by the Board cannot even remotely be stated to be perverse. It has been held that a possible view taken by the trial court cannot be said to be a perverse view. Even a wrong finding is not a perverse finding and for a finding to be perverse, it is not sufficient that it is against the weight of evidence but it has to be altogether against the evidence. Such a situation does not obtain qua the findings of the SDO and upheld by the Board that the suit land was ancestral land as contra-distinguished from self acquired land of the defendantsas propounded by them.
The judgments relied upon by the Sr. Counsel Mr. Suresh Pareek, for the defendants are of no succor to the plaintiffs' case. In Narendra Kante (Supra) the Hon'ble Supreme Court has held that a family settlement even if not signed by one of the parties would be binding if it has been acted upon. The said judgment in fact buttresses the case of the plaintiffs and not so much of the defendants. From the evidence on record particularly the report dated 19.07.2006 submitted by of the Tehsildar on site inspection following the directions of the Collector, it is evident that the plaintiffs were in use, occupation and enjoyment of 1/3rd share of the ancestral land duly demarcated. It is thus evident that the parties were in possession of their respective shares as was recorded in compromise deed dated 18.10.1999 apparently as a memorandum of a pre-existing arrangement. In my considered opinion, reliance placed by the Sr. Counsel on the judgments of this Court in the cases of Nand Kishore (Supra) and Shree Lal (Supra) is also of no avail in the facts of the present case. In the aforesaid judgments this Court has held that an unregistered family settlement is liable to be ignored while evaluating the evidence. The observations of this Court in the aforesaid cases were in the context of the facts of the cases before it and not a statement of law that even family settlement recording a pre-existing state of affairs arrangement not entailing in prasenti creation or destruction of property rights by themselves require to be registered. The law with regard to family settlement in fact is that only a settlement which proposes to create rights in itself requires to be registered not otherwise. In fact a family settlement in the nature of a memorandum for remembrance of a past arrangement and which does not transfer/convey any civil rights in prasenti and therefore is not a conveyance, is not required to be registered as consistently held by the Hon'ble Supreme Court more famously in the case of Kale & Ors. Vs. Deputy Director of Consolidation & Ors. [(1976) 3 SCC 119]. In my considered opinion, the SDO as also the Board have rightly held that the compromise dated 18.10.1999 was in the nature of a settlement which recorded the preexisting arrangement between the parties with regard to the rights over ancestral land and not having created any rights in prasenti was not required to be registered or inadmissible for reason of its non-registration.
It is no doubt true that the plaintiffs have to stand on their own feet and a suit cannot be decreed on the ground that the defendants had failed to prove their defence, as has been held by this Court in the case of Raghunath (Supra). That however is bald proposition relied upon by the Sr. Counsel dehors the facts of the present case. In the present case, the plaintiffs had brought on record evidence with regard to their khatedari rights of their father Sonaram in the ancestral land as evident from record of rights Samvat 2013 to 2016 in respect of khasra Nos.80 and 76/2. They had also relied upon, exhibited and proved, the compromise dated 18.10.1999 evidencing the ancestral nature of the suit land and pre-existing arrangement of the three sons of Gangabishan in cultivatory possession of 1/3rd each. Further the Tehsildar's report dated 19.07.2006 following the site inspection of 11.07.2006 evidenced that the plaintiffs were in independent exclusive possession of a demarcated portion admeasuring 1/3rd out of the ancestral land aggregating to 12 bigha 13 biswa. Finally the SDO also took into consideration the admission of the defendant Shyam Lal in his cross-examination that the suit land was ancestral land. These aspect of the plaintiffs' evidence has been considered by the SDO as also Board in the context of the defence evidence failing to prove from any evidence of probative worth that the suit land was self acquired land. As held by the Hon'ble Supreme Court in R.V.E. Venkatachala Gounder (Supra) both the parties having failed before the trial court to furnish any clinching evidence of their respective title, the trial court was free to proceed on the probabilities of the case on the basis of the appreciation of evidence on record. It so did in the instant case decreeing the suit filed by the plaintiffs. The Board in the circumstances has rightly upheld the same in its judgment dated 02.11.2010 setting aside the judgment of the RAA to the contrary.
I therefore find no force in the petition.
Dismissed.
(ALOK SHARMA), J MS/-
All corrections made in the order have been incorporated in the order being emailed.
Manoj Solanki, Personal Assistant.