Badri Bai and Others vs The Board of Revenue and Others

Alok Sharma, J.—This petition purporting to be one under Articles 226 & 227 of the Constitution of India but in-fact relatable to Article 227 of the Constitution of India (as it is against the Judgment of the Board of Revenue, Rajasthan, Ajmer-hereinafter ''the Board'') rendered on 2.04.2014) seeks setting aside of the judgment of the Board whereby the Board upset the judgment of the Revenue Appellate Authority, Kota (hereinafter ''the RAA'') passed on 25.3.2011 and restored the judgment and decree dt. 19.8.2009 passed by the Sub Divisional Officer, Khanpur (hereinafter ''the SDO) dismissing the petitioners plaintiffs (hereinafter ''the plaintiffs'') suit for declaration and partition under Secs. 88, 91, 89, 92A, 188 and 53 of the Rajasthan Tenancy Act, 1955 (hereinafter ''the Act of 1955''). I have heard learned counsel for the plaintiffs and perused the impugned judgment dt. 2.4.2014 passed by the Board.

At the outset it would be in place to detail the limitations of this Court exercising powers under Article 227 of the Constitution of India. The Hon''ble Apex Court has held that the powers under Article 227 of the Constitution of India can be exercised in the following situations:

(i) Where important evidence has been over-looked;

(ii) Where the governing legal provisions have been over-looked or misapplied resulting in an error apparent on the face of the record; and

(iii) Where the Courts below have exceeded their jurisdiction and there is a failure of justice.

It has also been held by the Hon''ble Apex Court that the powers of the Court under Article 227 of the Constitution of India, even though, unfettered, are subject to a high degree of discipline and interference thereunder has to be kept at the minimum. The said powers are to be exercised with care, circumspection caution and only where the superior Courts find that the Courts/Tribunal below are guilty of dereliction of duty or have adjudicated the issue before them contrary to the fundamental principles of law. The Hon''ble Apex Court in the case of Sadhana Lodh Vs. National Insurance Company Ltd. and Another, has held that the supervisory jurisdiction of the High Court under Article 227 of the Constitution of India cannot be invoked merely to correct an error of law not apparent on the face of the record much less errors of fact as the Court is not exercising any appellate powers. It has been held that it is not permissible in a petition under Article 227 of the Constitution of India to review the evidence upon which the Courts below/Tribunals have proceeded to pass the order which is impugned before the High Court in a writ petition.

In the context of the aforesaid limitations of the jurisdiction of this Court under Article 227 of the Constitution of India, a bare look at the impugned Judgment dt. 2.4.2014 passed by the Board and the Judgment of the SDO passed on 19.8.2009 indicates that it was not proved that Kalyan Bux had adopted Duli Chand and consequently the plaintiffs'' suit based on such adoption was liable to fail.

Broadly stated the facts of the case are that the plaintiffs filed a suit for declaration and partition stating that lands falling in Khasra No. 2320 admeasuring 16 Biswa, Khasra No. 2321 ad-measuring 14 Bigha 15 Biswa (total 15 Bigha 11 Biswa) situate in Village Khanpur Tehsil Khanpur was ancestral property devolving inter-alia on them along-with the defendant Shobharam their brother from their grandfather one Kalyan in equal measure. It was stated that owing to their father Duli Chand predeceasing Kalyan, mutation of the suit land was manipulated solely in his own name by the respondent-defendant Shobharam (hereinafter ''the defendant'') - their brother to their wrongful exclusion. It was prayed that the property in the hands of Shobharam be declared to be ancestral, with the plaintiffs'' entitled to share of 1/3rd each and a decree of partition accordingly be passed. The suit was contested by the defendant Shobharam. It was stated that the suit property did not devolve as alleged but came to the defendant as the adopted son of late Kalyan Bux the recorded khatedar of the suit land. The natural father of the defendant - one Ramnarayan - had nothing whatsoever to do with the suit land and had no khatedari therein. It was submitted that under mutation No. 108 the Gram Panchayat of Khanpur had on or about 16.6.1992 opened mutation in the name of Sita Bai widow of Kalyan Bux and the defendant as Kalyan Bux the recorded khatedar had expired about 9/10 years prior thereto. It was submitted that thereafter following the death of Sita Bai, her name was deleted from revenue records qua the suit land and the defendant rendered the sole khatedar thereof. That position was reflected in the Jamabandi of Smvt. 2059-2062 and Smvt. 2051-2055 respectively. It was submitted that the plaintiffs'', though the defendant''s sisters from the loins of a common natural father thus had no khatedari rights even remotely in the suit land. The suit land devolved on the defendant from his adoptive father, Kalyan Bux and the sisters as plaintiffs were thus not entitled to a declaration or partition as sought.

Six issues were framed by the SDO, Khanpur on the pleadings of the parties. The evidence before the SDO was the Jamabandi of Smvt. 2059-2062 and Smvt. 2051-2055 evidencing the sole khatedar of the defendant. This was buttressed by oral evidence showing that following the death of Kalyan Bux, the ''Pagri'' was placed on the head of Shobharam - the defendant (as his successor) in the presence of Kalyan Bux''s widow Sita Bai. This was testified to even by one of the two plaintiffs, Santosh Bai in her testimony. The SDO held that it was established from evidence with the requisite preponderance of probability that Kalyan Bux not Ramnarayan the plaintiffs'' grandfather was the khatedar of the suit land. Following Kalyan Bux''s death, mutation was opened in the name of his widow Sita Bai and Shobharma as successors. It was held that in the circumstances the suit property could not be held to be the ancestral property of the plaintiffs and consequently they were entitled neither to declaration of khatedari rights sought nor partition nor permanent injunction.

The well considered conclusions of the SDO leading to the Judgment and Decree dt. 19.8.2009 was however upset and set aside in appeal. The plaintiffs'' suit for declaration, permanent injunction and partition was decreed on a misdirection by the RAA in relying on and misconstruing mutation entries to hold that Duli Chand - the father of the plaintiffs and defendant and not Shobharam had been adopted by Kalyan Bux and the defendant Shobharam was only a beneficiary of Duli Chand predeceasing Kalyan Bux owing to which on Kalyan Bux''s death, Shobha Ram was entered as co-khatedar of the suit land in the revenue records along-with the widow of Kalyan Bux Sita Bai. The RAA overlooked the fact that there was no evidence whatsoever of Duli Chand''s adoption by Kalyan Bux - yet held that he was so adopted - quite obviously perversely on mere surmises and conjectures based on inferences from mutation entries recording that Duli Chand was the adopted son of Kalyan Bux. The Board has on an objective consideration of the evidence on record set - aside the perverse judgment and decree passed by the RAA, Kota and restored the one passed by the SDO, Khanpur District Jhalawar on 19.8.2009. Hence this petition.

Mr. Vijay Chudhary, counsel for the plaintiffs has submitted that in terms of mutation Nos. 108 and 852 - Shobharam was conferred khatedari over the suit land as the son of Duli Chand who in turn had been adopted by Kalyan Bux. The conferment of khatedari rights on Shobharam was fortuitous owing to Duli Chand having predeceased Kalyan Bux. It has been submitted that in the voter list of year 2004 (equivalent to Smvt. 2061) at S. No. 99 Shobharam was recorded as son of Duli-Chand not Kalyan Bux and further that Shobharam in his statement had disclosed the name of his father as Duli Chand and the plaintiffs his sisters. It has been further submitted that Shobharam had filed a suit against the legal representatives of Motilal as son of Duli Chand albeit the suit had failed for reason of the Court holding that Duli Chand had gone in adoption and thus Shobharam as his son had no rights over Ramnarayan, his grandfather''s property.

Heard. Perused the impugned judgment of the Board. Considered

I am afraid that there is no force in the submissions of the counsel for the petitioners. The burden was on the plaintiffs to establish that their father Duli Chand through whom they claimed was adopted by Kalyan Bux the erstwhile khatedar of the suit land. Hence it was for the plaintiffs to establish from the evidence the year when Duli Chand their father was adopted, his age at the time of adoption being less than 15 years and his being unmarried at the relevant time. Alternatively the plaintiffs had to prove from evidence on record that the adoption of an older married man Duli Chand - their father by Kalyan Bux was buttressed and saved by custom. The plaintiffs had also to prove the giving and taking of Duli Chand for a valid adoption. None of this was done, no evidence on this score led. Nor even an attempt made on this count. Only inference of adoption of Duli Chand was sought to be drawn on the basis of fiscal entries and a stretched speculative interpretation thereof. The plaintiffs'' case cannot find traction without anything more from the mutation entries in the name of Shobharam also recording that Duli Chand was the adopted son of Kalyan Bux. Such recording without proof of adoption cannot be of any avail to the plaintiffs in discharging the burden of their father Duli Chand having been adopted by Kalyan Bux. The voter-list purportedly showing Shobharam as son of Duli Chand is a government document unilaterally drawn and cannot be conclusive of Shobharam not having gone into adoption of Kalyan Bux and allow as if on a rebound that Duli Chand had gone in adoption to Kalyan Bux. Law does not permit conclusions of adoption based on inferences. Shobharam stating that his natural father was Duli Chand and the plaintiffs, his sisters was a statement of fact which cannot be taken in isolation and drown or cloud over his specific assertion in his testimony before the SDO that he was taken as son in adoption by Kalyan Bux and his wife Sita Bai. And thus cannot be destructive of Shobharam''s defence in the plaintiffs'' suit.

The argument of the plaintiffs'' counsel that the revenue Court held in Suit No. 458/2005 laid purportedly by Shobharam by its judgment and Decree dt. 17.5.2008 that Duli Chand had gone into adoption to one Kalyan Bux is of no avail as no Judgment was filed or its contents specific to the assertion brought to the notice of the SDO or for that matter the Board. No such Judgment has also been brought to the notice of this Court.

As against the failure of the plaintiffs'' to discharge the burden of Duli Chand''s purported adopted by Kalyan Bux, the defendant was ensconced as a recorded khatedar as per khatedari''s of Smvt. 2059-2062 and Smvt. 2051-2055. He had no bother to prove his adoption. But there was oral evidence on record that following the death of Kalyan Bux, Shobharam the defendant was made to wear a ''Pagri'' as a sign of being Kalyan Bux''s successor in the presence of Kalyan Bux''s widow Sita Bai. This was admitted by Santosh Bai one of the plaintiffs in her testimony before the SDO. Further mutation in the defendant favour had been made as early as on 20.6.1992 as co-khatedar along-with Sita Bai. Kalyan Bux''s widow without any demur. Aside of the above the defendant was a recorded khatedar. He could only be displaced by a cogent case based on evidence of probative worth. This the plaintiffs failed to do. The SDO rightly held so and dismissed the suit. The RAA''s unjustified reversal has been rightly corrected by the Board. In my considered opinion in the facts of the case, there is no ex-facie error apparent on the face of the judgment and decree dt. 2.4.2014 passed by the Board upholding the judgment of the SDO passed on 19.8.2009 and setting aside the order of the RAA passed on 25.3.2011. Nor can any perversity or misdirection in law be attributed thereto. The burden was on the plaintiffs in their suit and they failed to discharge it on the foundational issue of their father''s Duli Chand''s adoption by Kalyan Bux.

I find no force in the petition. Dismissed.