Kandera and Others vs Board of Revenue and Others

Mohammad Rafiq, J.—This writ petition, filed by petitioners Kandera and Gulkandi, seeks to challenge judgment dated 12.10.2000 passed by Board of Revenue for Rajasthan, Ajmer, in Second Appeal, with further direction that all action taken pursuant to that be declared illegal and legal consequences to follow.

Facts of the case are that respondent No. 4 Gangaram S/o. Khyali @ Halli filed a suit for injunction as well as partition of agriculture land comprising of Khasra Nos. 2417, 2418, 2419, 2421, 2422, 2428 and 2429, admeasuring 13 bigha 7 biswa. The said land was situated in village Patwar Halka Bhelara, Tehsil Nadbai, District Bharatpur. It was pleaded that respondent No. 4 Gangaram has wrongly been recorded as khatedar having 1/3rd share in aforesaid land. He was entitled to one-half share in view of the fact that he is son of Khyali @ Halli, who was real brother of defendant Kandera. Both, Halli and Kandera, were sons of Marua and on his death both inherited half-half share each. The suit was filed by Gangaram. Petitioner filed written statement disputing the claim of the plaintiff-respondent. Petitioner denied the pedigree and stated that Khyali @ Halli was son of Sukhram, who was brother of Marua. It was thus asserted that Khyali @ Halli was not son of Marua. The land in dispute was self-acquired property of Marua and therefore defendant-petitioner Kandera inherited hole of the land. However Khyali @ Halli died. Gangaram at that time was a very small child. Petitioner Kandera being close relative of Khyali @ Halli, out of gratitude and compassion, got 1/3rd share in the land recorded in his favour, which was actually given to him for his survival. When the suit was filed by respondent No. 4, he himself gave a statement admitting all these facts. The trial court, however, decreed the suit in favour of plaintiff-respondent No. 4. Petitioner filed appeal before the Revenue Appellate Authority, who allowed the same vide judgment dated 24.06.1994. Plaintiff-respondent filed second appeal before the Board of Revenue, which, however, reversed the judgment of the Revenue Appellate Authority and restored that of the Assistant Collector, Bharatpur.

Shri Suresh Goyal, learned counsel for petitioner argued that the Board of Revenue has seriously erred in holding that the theory of Khyali @ Halli being son of Sukhram was not set up before the trial court. Bare perusal of the judgment of the trial court would go to show that case accepted by first appellate court was fully pleaded before the trial court by the defendants and evidence in support thereof was also adduced. The Board has further misread Annexure-1, the mutation entry made on 09.09.1965 whereby 2/3rd land was attested in favour of Khyali @ Halli S/o. Marua and 1/3rd land in favour of Gangaram. The mutation entry attested by Gram Panchayat, leaves no doubt that Khyali @ Halli was son of Marua. The Board of Revenue has thus passed the judgment on surmises and conjectures. The Board of Revenue in its judgment has given cursory reference to some documents with total non-application of mind. Board of Revenue has not given any cogent reason for reversing judgment of the first appellate court, which is well reasoned and considered, both on facts and law. The Board has not assigned any reason while differing with judgment of Revenue Appellate Authority. Learned counsel referred to statement of Gangaram (Annexure-3) in which he admitted that he was cultivating 1/3rd of the disputed land and Kandera S/o. Marua was cultivating remaining 2/3rd. In that statement he has passingly stated that Kandera was his uncle but this statement does not prove that he was his real uncle. In fact Khyali @ Halli father of Gangaram was not real brother of Kandera, which fact has been misunderstood by the Board of Revenue. The Revenue Appellate Authority has rightly concluded otherwise. It is, therefore, prayed that the writ petition be allowed.

Shri R.B. Sharma, learned counsel for respondent No. 4, has argued that learned Assistant Collector has rightly decreed the suit on the basis of oral and documentary evidence including the documents, namely, Jamabandi of Samvat 2043, mutation attested by Gram Panchayat (Exhibit P-2), Milan Kshestrafal (Exhibit P-3), copy of Khasra Girdawari 2043-45 (Exhibit P-5) and copy of Khasra Girdawari 2042-45 (Exhibit P-6). Learned trial court has relied on statement of Gangaram (PW-1), Chiranji (PW-2), Beniram (PW-3) and Tejo (PW-4). Learned counsel, in particular, referred to statement of Tejo (PW-4), who admitted that mutation No. 13 was attested in the year 1965 by Gram Panchayat, in which pedigree of Marua has been given. Mutation was entered in the names of Khyali @ Halli and Kandera, both sons of Marua. According to that pedigree, Marua had two sons, one is Khayali @ Halli and another is Kandera. Khyali @ Halli was having one son Gangaram, plaintiff-respondent No. 4. Tejo (PW-4) also admitted that Marua was her father-in-law and that pedigree given in mutation attested by Gram Panchayat, was correct. Learned counsel argued that property of deceased Marua was situated in two villages, one part of that was situated in village Balara, in which petitioner Kandera and Khyali @ Halli respondent Gangaram, therefore had equal share and there never arose any dispute with regard thereto. Property in dispute is, however, situated in village Kawai, wherein petitioner had 2/3rd share and respondent No. 4 Gangaram had 1/3rd share. It is denied that Kandera had 2/3rd and respondent Gangaram had 1/3rd share. Said assertion is absolutely incorrect. Since Kandera and Khyali @ Halli are both sons of Marua, therefore, they were entitled to inherit half-half share each in the land situated in village Kawai and plaintiff Gangaram being only son of Khyali @ Halli, was entitled to inherit such half share. It is argued that Revenue Appellate Authority has wrongly reversed findings recorded by the Assistant Collector, which was based on correct appreciation of evidence. Board of Revenue therefore was justified in reversing that finding and restoring judgment of Assistant Collector as to whether Khyali @ Halli and Kandera are sons of Marua, is a question of fact and writ of certiorari can be entertained only if there is any error apparent on the face of record inasmuch as any legal issue arises in the matter. There being none, the writ petition is liable to be dismissed.

On hearing learned counsel for parties and perusing material on record, I find that Assistant Collector, Bharatpur, has examined both - documentary as well as oral evidence, especially he in particular relied on statement of Tejo (PW-4), daughter-in-law of deceased Marua. She has categorically stated that Khyali @ Halli and Kandera were two sons of Marua. This fact is corroborated by mutation entry attested by Gram Panchayat in the year 1965, which is an old document. In that mutation entry, both have been shown to be sons of Marua. It is on that basis that learned trial court has concluded that Gangaram being son of Khyali @ Halli was grandson of Marua and, therefore, entitled to inherit his property. Revenue Appellate Authority has though rightly taken note of fact that earlier entry of 1/3rd share in favour of plaintiff Gangaram and 2/3rd share in favour of defendant would be inconsequential. If it is shown that Khyali @ Halli was son of Marua. And if it is proved that Khyali @ Halli was son of Sukhram, brother of Marua, the plaintiff would not be entitled to inherit any part of the disputed land. Having held so, first appellate court has relied on statement of Gangaram recorded on 19.02.1986 in earlier suit No. 45/1986 to hold that the petitioner voluntarily got 1/3rd land transferred/entered in the name of plaintiff-respondent, but in that statement also Gangaram is shown to have stated that Kandera happens to be his uncle (chacha), and that they were both cultivating the land and had pledged it with Bank for obtaining loan. Now loan has been repaid, and that they have wrongly been shown as ''gair-khatedar''. They should be entered as khatedar. From that, it appears that suit was filed for partition under Sections 88 and 89 of the Rajasthan Tenancy Act for correction of entry, in which the State was also a party. Defendant-petitioner Kandera was plaintiff in that suit and respondent No. 4 Gangaram was defendant, in which both admitted that they were in possession, respectively of 2/3rd and 1/3rd part of the land, which was accordingly entered in their names. But in subsequent suit plaintiff-respondent asserted that defendant-petitioner got 2/3rd land recorded in his favour taking advantage of the fact that plaintiff-respondent was minor. It was also asserted that defendant-petitioner was real uncle of plaintiff-respondent. Plaintiff was only one month old when Khyali @ Halli died. Tejo, mother of plaintiff Gangaram, came to ''nata'' to Kandera. According to defendant Kandera, he voluntarily gave 1/3rd share of his own land to plaintiff for survival. He was not real uncle of plaintiff, but in evidence before the trial court, it was proved that Sukhram died issueless and his wife came to ''nata'' to Marua. Defendant taking advantage of that, asserted that he was grandson of Sukhram and not of Marua. There was oral as well as documentary evidence, which also supported this finding recorded by trial court. First appellate court has indeed not given any cogent and valid reasons. Statement of Gangaram in earlier suit filed for correction of entry by both parties would have no effect as even if he was given possession of 1/3rd of land, as rightly observed by first appellate court if it is proved that they are both descendants of deceased Maruwa, they would be deemed to be co-sharers and possession of one sharer would be considered possession of all. This is rightly so observed that one sharer cannot claim adverse possession against another co-sharer. The Board of Revenue has categorically noted and that the case sought to be set up by the defendant before the court that Shobaram had two sons Maruva and Sukhram was not pleaded either in the plaint or the written statement and this was set up for the first time before the first appellate court. The Board held that there is no ample evidence to prove that Bhanwari widow of Sukhram remarried Maruwa after his death, but there was enough evidence to prove that Marua was the original khatedar and he had two sons, namely, Khyali @ Halli and Kandera and that it was on that basis that the land left by him in village Balera was also divided amongst them in equal proportion i.e. half-half. Thus the Board has held that this finding thus proved from the mutation entry No. 13 attested by the Gram Panchayat in the year 1965.

In view of the above discussion, the findings recording by the Board of Revenue cannot be said to be perverse or otherwise suffers from error apparent on the face of record so as to justify interference by this court.

This writ petition fails and the same is hereby dismissed.