Gheesi vs The Board of Revenue for Rajasthan and Others

Sangeet Lodha, J.

This writ petition is directed against order dated 31.5.07 passed by the Board of Revenue, whereby while dismissing the revision petition preferred by the petitioner under Section 84 of Rajasthan Land Revenue Act, 1956 (for short "the Act"), against the order dated 21.9.05 passed by the Additional Divisional Commissioner, the directions are issued to maintain the mutation entry No. 5 recorded in the name of Udailal, the respondent herein, in respect of the land in question.

The relevant facts are that the land measuring 1.48 hectare comprising khasra No. 268 of revenue Village-Jafarpura, Patwar Halka Semaliya, District-Chittorgarh, was recorded as khatedari land of Shri Bhagwanlal. The land in question was sold by petitioner''s mother in favour of Shri Udailal s/o Khema by way of registered sale deed. Accordingly, the land was entered in the revenue record in the name of Shri Udailal vide mutation entry No. 5 dated 29.10.88. Aggrieved thereby, the petitioner''s mother Smt. Barji preferred an appeal stating that the land in question is being managed by her daughter, the petitioner herein, who has 1/2 share therein. It was contended that the sale deed was got executed by Udailal in his favour by committing fraud. The appeal preferred by Smt. Barji was allowed by the Sub Division Officer (SDO), Chittorgarh vide order dated 23.10.89 and while cancelling the mutation entry No. 5 recorded in the name of respondent-Udailal, the matter was remanded to the Tehsildar for passing an appropriate order afresh after giving an opportunity of hearing to both the parties. In the meantime, Smt. Barji executed a Will in respect of the disputed land in favour of the petitioner herein. Later, the land was mutated in the name of the petitioner by inheritance without passing any order pursuant to the remand order passed by the SDO, Chittorgarh, as aforesaid.

After a lapse of about 15 years, the Tehsildar, Chittorgarh recommended to the District Collector, Chittorgarh vide communication dated 3.5.04 to cancel the mutation recorded in the name of the petitioner and further to enter the mutation in the name of the respondent-Udailal.

After hearing both the parties, the District Collector, Chittorgarh rejected the prayer for change of mutation entry observing that if Udailal has any grievance with regard to the mutation entered, he must avail the remedy of appeal before the court of competent jurisdiction.

Aggrieved thereby, Udailal preferred an appeal before the Additional Divisional Commissioner, Udaipur under Section 75 of the Act. The appeal was partly allowed by the Additional Divisional Commissioner vide order dated 21.9.05. The mutation entry No. 5 recorded in the name of Shri Udailal as also the mutation recorded in the name of the petitioner herein was ordered to be cancelled and SDO was directed to pass an appropriate order, after due consideration of the order dated 29.10.89, the sale deed dated 17.8.88, the mutation entry No. 5 recorded in the name of Udailal and the mutation recorded in the name of the petitioner herein by inheritance as also the position of possession over the land in question at the site and after giving an opportunity of hearing to both the parties.

Aggrieved by the order dated 21.9.05 passed by the Additional Divisional Commissioner, as aforesaid, the petitioner preferred a revision petition before Board of Revenue Rajasthan, Ajmer, aggrieved by the cancellation of the mutation entry made in her favour. Strangely enough while dismissing the revision petition preferred by the petitioner, the Board of Revenue proceeded to issue directions to restore the mutation entry No. 5 recorded in the name of the respondent-Udailal. Hence, this petition.

Learned counsel appearing for the petitioner contended that the order passed by the Additional Divisional Commissioner remanding the matter to the SDO, Chittorgarh for consideration of matter afresh was not questioned by the respondent-Udailal before the Board of Revenue and therefore, while dismissing the revision petition preferred by the petitioner, there was no occasion for the Board of Revenue to issue directions for restoration of the mutation entry No. 5 recorded in the name of the respondent-Udailal, which had already been cancelled by the SDO vide order dated 23.10.89 and thereafter, by the Additional Divisional Commissioner vide order impugned before the Board of Revenue. Learned counsel submitted that the order passed by the Board of Revenue is ex facie without jurisdiction. Learned counsel submitted that if pursuant to the remand order passed by the SDO, no order was passed by the Tehsildar, Chittorgarh then, for lapses on his part, the petitioner cannot be penalised. Learned counsel submitted that if the respondent was aggrieved by the mutation recorded in favour of the petitioner, it was always open for him to avail the remedy of appeal available under the Act and therefore, the order passed by the District Collector, Chittorgarh was not required to be interfered with by the Additional Divisional Commissioner, Chittorgarh.

On the other hand, the counsel appearing for the respondent No. 4 submitted that the sale deed executed by Smt. Barji in favour of the respondent No. 4 had never been challenged by the petitioner and therefore, the directions issued by the Board of Revenue for restoration of the mutation entry No. 5, taking into consideration the factum of sale by the petitioner''s mother in favour of the respondent No. 4, cannot be faulted with. Learned counsel submitted that the petitioner had never been in possession of the land in question and therefore, the order passed by the Board of Revenue, does not warrant any interference by this court.

I have considered the rival submissions and perused the material on record.

Indisputably, the land in question was inherited by the petitioner and her mother from the petitioner''s father Shri Bhagwanlal and therefore, prima facie, her share in the land in question cannot be disputed. In any case, the mutation entry made in favour of the respondent No. 4 on the strength of the sale deed executed in his favour by Smt. Barji was questioned by Smt. Barji by way of an appeal before the SDO, Chittorgarh, which stood disposed of vide order dated 23.10.89 and while cancelling the mutation made in favour of the respondent-Udailal, the matter was remanded to the Tehsildar, Chittorgarh to take appropriate decision after hearing both the parties. It is not disputed before this court that pursuant to the remand order, the Tehsildar did not pass any order after hearing both the parties, however, the land was recorded in the name of the petitioner herein in the revenue record. Be that as it may, while deciding the matter registered on the recommendations of the Tehsildar, the District Collector, Chittorgarh vide order dated 6.9.04 opined that the respondent-Udailal, if aggrieved by the mutation effected in name of Smt. Gheesi, must avail the remedy of appeal available under the relevant statute. Aggrieved thereby, the appeal preferred by the respondent-Udailal was partly allowed by the Additional Divisional Commissioner and the matter was remanded to the SDO, Chittorgarh for consideration afresh keeping in view inter alia the remand order dated 23.10.89, after hearing both the parties. Obviously, the petitioner had preferred revision petition before the Board of Revenue aggrieved by the cancellation of the mutation entry recorded in her name and the remand order passed by the Additional Divisional Commissioner as aforesaid and thus, question with regard to the correctness of the mutation entry No. 5 recorded in the name of respondent No. 5, which already stood cancelled vide order dated 23.10.89 was not there for consideration before the Board of Revenue. Thus, order impugned passed by the Board of Revenue directing restoration of the mutation entry No. 5 recorded in the name of the respondent-Udailal, while recording the finding that no order having been passed by the Tehsildar, pursuant to the remand order passed by the SDO for a long period reflects that the mutation No. 5 recorded in the name of Shri Udailal was valid, to say the least, is absolutely capricious and perverse.

It is a matter of record that the remand order passed by the SDO, Chittorgarh dated 23.10.89 though attained finality, has not been given effect to till this date. Thus, the order passed by the Additional Divisional Commissioner cancelling the mutation recorded in the name of the petitioner without giving effect to the remand order, cannot be faulted with. Keeping in view the fact that remand order passed by the SDO has not been complied with, the order passed by the Additional Divisional Commissioner remanding the matter to the Tehsildar concerned for consideration afresh in the terms indicated also does not suffer from any infirmity or illegality and therefore, the order passed by the Board of Revenue dismissing the revision petition preferred by the petitioner does not warrant any interference by this court in exercise of its supervisory jurisdiction but then, the direction issued by the Board of Revenue directing restoration of the mutation entry No. 5, recorded in the name of respondent-Udailal, deserves to be set aside.

In the result, the writ petition is partly allowed. The writ petition preferred by the petitioner questioning the legality of the order impugned passed by the Board of Revenue to the extent of dismissing the revision petition preferred by the petitioner, shall stand dismissed. However, the directions issued by the Board of Revenue directing restoration of the mutation entry No. 5 recorded in the name of the respondent-Udailal are set aside. The Tehsildar, Chittorgarh is directed to pass the appropriate order after hearing both the parties as directed by the Additional Divisional Commissioner, Chittorgarh vide order dated 21.9.05 expeditiously, in any case, within a period of six months from the date of receipt of certified copy of this order. No order as to costs.