Laxmi Narayan & Ors vs Smt. Jamna & Ors on 3 February, 2017

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Rajasthan High Court - Jodhpur

Laxmi Narayan & Ors vs Smt. Jamna & Ors on 3 February, 2017

1. This petition is directed against order dated 18.11.16 passed (2 of 5) [CW-14163/2016] by the Board of Revenue Rajasthan, whereby a revision petition preferred by the respondents no.1 to 3 against the order dated 15.7.13 passed by the Additional Divisional Commissioner, Jodhpur has been allowed and the order dated 7.12.12 passed by the Sub Divisional Officer, setting aside the mutation of the disputed land made in favour of the petitioners and remanding the matter to Tehsildar, Luni for passing the appropriate order afresh after due inquiry and giving an opportunity of hearing to the parties, has been upheld.

2. The relevant facts are that the land ad measuring 14 bighas comprising khasra no.122 and 15 bighas 5 biswas comprising khasra no.123, total rakba 29 bighas 5 biswas, situated at village Luni, District Jodhpur was joint khatedari land of late Shri Govind Lal and late Shri Jhumar Mal sons of Chautha Ram, having one half share each. After death of Govind Lal, the entire land was mutated in the name of Jhumar Mal vide mutation entry no.367. The legality of mutation effected as aforesaid was questioned by the respondents, the wife and sons of late Shri Govind Lal by way of an appeal before the Sub Divisional Officer (SDO), Luni. After due consideration, the SDO arrived at the finding that the mutation was effected by the Gram Panchayat in favour of Jhumar Mal without making an enquiry regarding the legal heirs of Shri Govind Lal. Accordingly, while setting aside the mutation effected, the SDO remanded the matter to Tehsildar, Luni to pass the appropriate order for mutation of the land after giving an opportunity of hearing to the respondents herein, who claim themselves to be the legal heirs of late Shri Govind Lal. Aggrieved (3 of 5) [CW-14163/2016] thereby, an appeal preferred by the petitioners herein was allowed by the Additional Divisional Commissioner vide order dated 15.7.13 and the order passed by the Sub Divisional Officer dated 7.12.12 as aforesaid was set aside. The second appeal preferred by the respondents no. 1 to 3 before the Board of Revenue Rajasthan, stands allowed by the order impugned and the order passed by the SDO, cancelling the mutation and remanding the matter to the Tehsildar stands restored. Hence, this petition.

3. Learned counsel appearing for the petitioners submitted that the SDO has seriously erred in entertaining the appeal preferred by the respondents no.1 to 3 against the mutation effected in favour of their father after a lapse of about 39 years. Learned counsel submitted that there was no plausible explanation for inordinate delay in filing the appeal and therefore, the Additional Divisional Commissioner was absolutely justified in holding that the inordinate delay in filing the appeal without there being any sufficient cause shown could not have been condoned. Learned counsel submitted that the question with regard to the respondents claim for share in the disputed land by inheritance being wife and sons of late Shri Govind Lal, cannot be decided in the mutation proceedings, which are fiscal in nature and thus, the SDO has seriously erred in remanding the matter to Tehsildar for consideration afresh. Learned counsel submitted that all these relevant aspects of the matter have not been taken into consideration by the Board of Revenue and therefore, the order impugned deserves to be set aside.

4. I have considered the submissions of the learned counsel (4 of 5) [CW-14163/2016] and perused the material on record.

5. It is to be noticed that while filing the appeal against the mutation effected, the respondents had taken a categorical stand that the first respondent is an illiterate lady and the respondents no.2 and 3 were minor at the relevant time when the mutation was effected by the Gram Panchayat on the application preferred by late Shri Jhumar Mal. It was the specific stand of the respondents that they were in cultivatory possession of the land throughout and they came to about the mutation entry effected in the name of Jhumar Mal only on 8.3.12. There was nothing on record suggesting that the respondents no.1 to 3 had acquired the knowledge about the mutation being effected in the name of Jhumar Mal alone earlier. Thus, taking into consideration the facts and circumstances of the case, where admittedly, the mutation was effected in the name of Jhumar Mal without giving an opportunity of hearing to the respondents no.1 to 3, who claims to be legal heirs of Shri Govind Lal and had one half share in the land in question, the order passed by the SDO condoning the delay in filing the appeal and while allowing the appeal, remanding the matter to Tehsildar for passing an appropriate order for mutation of the land after giving opportunity of hearing to the parties was not required to be interfered with by the Additional Divisional Commissioner and thus, the Board of Revenue has committed no error in setting aside the order passed by the Additional Divisional Commissioner and restoring the order passed by the SDO as aforesaid.

6. No case for interference by this court in exercise of its (5 of 5) [CW-14163/2016] supervisory jurisdiction under Article 227 of the Constitution of India is made out.

7 The writ petition is therefore, dismissed in limine.

(SANGEET LODHA)J. Aditya/

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Rajasthan High Court - Jodhpur