Murli and Others vs Chothu and Others

Alok Sharma

By this petition a challenge has been laid to the order dated 3- 10-2002 passed by the Board of Revenue Rajasthan Ajmer (herein after `the Board'') quashing and setting aside the order dated 30-12- 1999 passed by the Revenue Appellate Authority Jaipur, which upheld the judgment and decree dated 26-2-1998 passed by the Assistant Collector-I, Jaipur dismissing the suit under Sections 88, 53 and 188 of the Rajasthan Tenancy Act, 1955 (herein after ''the 1955 Act'') filed by plaintiff Chothu-respondent herein- (since deceased and represented by respondents No. 1/1 to 1/7, herein after referred to `the plaintiff''). The facts of the case are that the plaintiff Chothu filed a suit for declaration, partition and permanent injunction under sections 88, 53, and 188 of the 1955 Act against the defendants Birdha s/o Nanga (since deceased and now represented by Murli), Mangla and Gyarsa sons of Kalu and Ram Kishore s/o Gyarsi Lal. It was stated in the suit that land of Khata No. 40, Khasra Nos.101, 645, 648, 649, 651 in all five admeasuring 9 bighas 11 biswas and Khata No. 9, Khasra No. 172 to 177, 444, 447 in all eight admeasuring 36 Bighas 11 Biswas situated at village Daulatpura Tehsil Amer, District Jaipur, aggregating to 46 Bighas 9 Biswas was in the joint khatedari of the plaintiff and the defendants in which the plaintiff had half share and the defendants Birdha and Mangla and also their successor in interest/ assignee the vendee Ram Kishore had half share. It was stated that the Settlement department had wrongly recorded the land of aforesaid two Khatas No. 40 and 9 aggregating to 46 Bighas 9 Biswas aforesaid as in 1/3 share to plaintiff and 2/3 share of defendants No. 1&2. In these circumstances, the plaintiff claimed a declaration that he be declared the sole khatedar to an extent of half share of the land in the two Khatas No. 40 and 9 aggregating to 46 Bighas 9 Biswas situated in village Daulatpura, Tehsil Amer, and thereupon the land be divided by metes and bounds. The plaintiff also sought a restraint on the defendants in suit from interfering in plaintiff''s alleged half share in 46 Bighas 9 Biswas situated in village Daulatpura, Tehsil Amer.

On service of notices in the suit for declaration, partition and permanent injunction, the defendants resisted the suit stating that the land belonged to erstwhile khatedar one Nanga, who had three sons Prabhat, Kalu @ Kaliya and Birdha. After the death of Prabhat, plaintiff Chothu, as his son was substituted in the Jamabandi of Svt.2026-29 (Ex.A-1) and shown as joint khatedar alongwith Kalu @ Kaliya and Birdha. It was stated that Chothu in these circumstances could lay a claim only to the rights of Prabhat s/o Nanga, and as Prabhat had two other brothers Kalu @ Kaliya and Birdha, he was entitled to only 1/3 share in the estate of Nanga-his late father. Chothu as Nanga''s son would only be entitled to 1/3 share as successor of Prabhat''s right in the khatedari of Nanga. It was submitted that the Jamabandi of Svt.2026-29, relied upon by plaintiff himself indicated that plaintiff was substituted for Prabhat, and could therefore only succeed to an extent of share of Prabhat in the khatedari of Nanga which was only 1/3 of the land in the two Khatas No. 40 and 9 admeasuring in the aggregate to 46 Bighas 9 Biswas situated in village Daulatpura, Tehsil Amer.

The learned Assistant Collector on the basis of pleadings of parties framed four issues, (1) Whether the plaintiff (Chauthu) was entitled to get himself declared as khatedar of half share of the land in the aforesaid two Khatas No. 40 and 9 aggregating to 46 Bighas 9 Biswas situated in village Daulatpura, Tehsil Amer, (ii)Whether the plaintiff was entitled to an order from the court for restraining the defendants from interfering in his alleged possession of half share in Khatas No. 40 and 9 aggregating to 46 Bighas 9 Biswas. (iii) Whether the defendants Kalu @ Kaliya and Birdhar had 2/3 share in the land under Khatas No. 40 and 9 aggregating to 46 Bighas 9 Biswas situated in village Daulatpura, Tehsil Amer. (iv) This issue was with regard to relief which could be granted in the suit.

The learned Assistant Collector-I Jaipur, vide judgment and decree dated 26-2-1998 dismissed the plaintiff''s suit holding. It was held that the plaintiff Chothu had admitted the pedigree propagated by the defendants Kalu @ Kaliya and Birdha where under the plaintiff''s father Prabhat along with the two defendants aforesaid was the son of Nanga. The court held that while claiming as the son of Prabhat Chothu could not be entitled to more than 1/3 khatedari in the joint holding the remainder 2/3 of the holding having shared equally between Kalu @ Kaliya and Birdha.

The plaintiff preferred a first appeal before the Revenue Appellate Authority Jaipur u/s 223 of the 1955 Act against the judgment and decree dated 26-2-1998. In appeal, the plaintiff tried to set up a new case that Nanga and his brother Hukma were joint khatedars of the land of the aforesaid two Khatas No. 40 and 9 admeasuring 46 Bighas 9 Biswas situated in village Daulatpura, Tehsil Amer, and Prabhat son of Nanga (the plaintiff''s father) had gone in adoption to Hukma. It was sought to be argued in the appeal that Hukma and Nanga each had half share in the land in issue and Prabhat having gone in adoption to Hukma was entitled to half share in the land of aforesaid two Khatas No. 40 and 9 aggregating to 46 Bighas 9 Biswas as the successor of Hukma. However, as the argument set up before the first appellate court by plaintiff Chothu, was contrary to his own pleadings in the suit, and even otherwise devoid of any evidence before the trial court in this regard, the appeal was dismissed vide order dated 30-12-1999.

Against the concurrent findings of the learned Assistant Collector-I, Jaipur and the Revenue Appellate Authority Jaipur, the plaintiff Chothu filed a second appeal before the Board of Revenue u/s 224 of the 1955 Act. The learned Board vide order dated 3-10-2002 allowed the second appeal and held that plaintiff Chothu was entitled to half share in the land of aforesaid two Khatas No. 40 and 9 admeasuring 46 Bighas 9 Biswas situated in village Daulatpura, Tehsil Amer. Aggrieved the petitioners, who were the respondents before the Board of Revenue, have laid this Writ Petition.

Heard learned counsel for the parties and perused the material available on record of the writ petition including the impugned orders of the courts below.

Section 224 of the 1955 Act limits the scope of second appeals. Sub-section 2 of the Section 224 of the 1955 Act provides limited grounds for filing second appeal. Section 224 of the Act of 1955 is reproduced here under:-

224: Appeals from appellate decrees- (1) an appeal shall lie to the Revenue Appellate Authority from a decree passed in appeal by a Collector.

(2) An appeal shall lie to the Board from a decree passed in appeal by Revenue Appellate Authority on any of the following grounds namely:-

(i) the decision being contrary to law or to some usage having the force of law;

(ii) the decision having failed to determine some material issue of law or usage having the force of law;

(iii) a substantial error or defect in the procedure provided by or under this Act or by any other law for the time being in force, which may possibly have produced an error or defect in the decision of the case upon the merits; and

(iv) the decision being contrary to the weight of evidence on record where the lower appellate court has varied or reversed any finding of the trial court on a question of fact.

A reading of sub-section 2 of the 224 of the 1955 Act indicates that the scope of second appeal is limited in nature and the Board cannot seek to proceed with appeals before it in an open ended manner side-tracking without good cause the limitation on its power and upsetting findings of fact and law arrived at by the lower appellate court without good cause statutorily sustainable.

One aspect of this case which stands out starkly from the facts on record as established before the Assistant Collector-I Jaipur, the Revenue Appellate Authority and the Board of Revenue and unshaken even before this Court is that the land of aforesaid two Khatas No. 40 and 9 aggregating to 46 Bighas 9 Biswas situated in village Daulatpura, Tehsil Amer, were in the sole khatedari of one Nanga. This is admitted fact in the suit as laid by the plaintiff Chothu. It is also an admitted fact that Nanga had three sons Prabhat, Kalu @ Kaliya and Birhda. Consequently all the sons of Nanga including Prabhat were entitled to equal share i.e. 1/3 each in land in dispute on the intestate death of Nanga in accordance with the Hindu Succession Act, 1956. Plaintiff Chothu claims himself to be son of Prabhat. In my considered opinion on the admitted facts of the case there was no manner in which the plaintiff Chothu could have been entitled to claim more than 1/3 share in the land of aforesaid two Khatas No. 40 and 9 aggregating to 46 Bighas 9 Biswas situated in village Daulatpura, Tehsil Amer.

The learned Board proceeded to upset the concurrent findings of the lower revenue courts on the basis of misinterpretation of entry in the Jamabandi of Svt.2026-29 (Ex.A-1) which reads as under:-

The aforesaid entry of the Jamabandi only indicates that Chothu, Prabhat, Kalu @ Kaliya and Birdha were the co-owners in the khatedari of the land. The Board in my considered opinion has not only misdirected itself in coming to a conclusion based on misreading of the entry in Jamabandi of Svt.2026-29 that the plaintiff Chothu had khatedari rights in the land in issue to an extent of half share with the other half going to the Khatedari of Kalu @ Kaliya and Birdha (or their successors) in equal measure (i.e. 1/4 each) but also has acted perversely in overlooking the evidence before the Assistant Collector-I, Jaipur that Prabhat as son of Nanga along with Kalu @ Kaliya and Birdha also sons of Nanga was entitled only to 1/3 share which would devolve on Prabhat''s death to his son and successor Chothu.

Apart from the aforesaid, the Board in my firm view has exceeded its jurisdiction u/s 224 (2) of the 1955 Act in interfering in the concurrent findings of lower revenue courts, as no ground as set out in sub-section 2 of 224 of the 1955 Act was made out for the Board to exercise its jurisdiction. It is well settled that appeals are creatures of the Statute and unless the pre-conditions for exercise of appellate power are fulfilled no appeal provided under Statute can be entertained. In the instant case, the Board has proceeded to upset the concurrent findings of fact on a generalised ground that the concurrent findings of the courts below were vitiated by perversity and were contrary to law. However a reading of the order 3-10-2002 passed by the Board does not indicate as to what material evidence had been overlooked by the learned Revenue Appellate Authority or in what manner its order dated 30-12-1999 upholding the judgment and decree dated 26-2-1998 passed by the Assistant Collector-I, Jaipur was vitiated by having failed to determine a material issue of law. Neither did the Board in its impugned order state that the orders of the courts below were liable to be set aside for a substantial error or defect in the procedure under the 1955 Act resulting an error or defect in the adjudication of the dispute between the parties on merits.

In the facts of the case the judgment and decree dated 26-2- 1998 passed by the Assistant Collector-I, Jaipur as upheld by the Revenue Appellate Authority Jaipur was neither contrary to law or any usage having the force of law. Similarly, no second appeal at the instance of the plaintiff Chothu could lie before the Board when it was apparent that the courts below had not failed to determine any material issue of law, or had committed a substantial error or defect in the procedure in determining the dispute before them. No such arguments appear to have been raised or even considered by the Board of Revenue nor was even agitated before this court.

For the reasons aforesaid, the writ petition is allowed. The order dated 3-10-2002 passed by the Board of Revenue Ajmer is set aside and the judgment and decree dated 26-2-1998 passed by the Assistant Collector-I, Jaipur as upheld by the Revenue Appellate Authority Jaipur vide order dated 30-12-1999 is restored. Stay application stands disposed of.