Sarjayo vs The Board of Revenue

Alok Sharma, J.—Restored and heard on merits.

This petition impugns the judgment dated 20-9-2011 passed by the Board of Revenue, Ajmer (headquarter ''the Board'') whereby it has set aside the judgment and decree dated 16-9-2003 passed by the Revenue Appellate Authority, Sawai Madhopur (RAA) while restoring the judgment and decree dated 16-5-2002 passed by the Assistant Collector Sawai Madhopur on the plaintiff-respondent''s suit for declaration of khatedari rights, partition, permanent injunction and correction of entries, and directing that in terms of Rules 20 and 21 of the Rajasthan Tenancy (Board of Revenue) the report of the jurisdictional Tehsildar on the partition as directed be obtained and after hearing the parties the final decree of partition be passed.

The facts of the case are that the respondents-plaintiffs Ramniwasi the widow of Kanhaiya, Bharosi and Kailash children of Kanhaiya (hereinafter ''the plaintiffs'') filed a revenue suit as detailed hereinabove before the Assistant Collector Sawai Madhopur. It was stated that the land mentioned in the plaint admeasuring 11 bigha 1 biswa situated in Goth Bihari Tehsil Khandar District Sawai Madhopur was ancestral land standing in the name of Jesya in the revenue records (Exhibit-1). Jesya had three sons Felu, Ganesh and Bhurji who on his death were conferred khatedari to the extent of 1/3rd share each (Exhibit 2). As Kanhaiya was son of Felu but had pre deceased him on 15-12-1974, the plaintiffs as his successors were entitled to subsequent in Felu''s death ten years thereafter to khatedari rights Felu''s land admeasuring 1/3 of 11 bighas 1 biswa as recorded in Exhibit-1. The plaintiffs stated that Felu had apparently gifted away the entire land including Kanhaiya''s share to Bhurji by a registered gift deed dated 18-6-1975 which was void ab initio and of no effect on the plaintiffs'' rights. In the circumstances a declaration was sought that the plaintiffs were the khatedars of the suit land and also entitled to correction of entries accordingly, partition and permanent injunction.

On service of notice on the plaint, the defendants-petitioners (hereinafter ''the defendants'') denied any relation with Felu or that the land in issue was ancestral. It was stated that following Kanhaiya''s death his widow the plaintiff Ramniwasi had gone in "NATA" to Laddu Mali and plaintiffs No. 2and3 born of that relationship. It was prayed that the suit thus be dismissed.

On the basis of pleadings, the learned Assistant Collector Sawai Madhopur framed two issues, and considering the oral and documentary evidence, vide judgment and decree dated 16-5-2002 held that the alleged gift deed dated 18-6-1975 executed by Felu in favour of Bhurji, the ancestor of the defendants was void ab initio, without authority to the extent of Kanhaiya''s half share therein, ineffective against the plaintiffs as the land falling to the share of Kanhaiya s/o Felu was ancestral property. The plaintiffs were held entitled as successor of Kanhaiya son of Felu to a declaration of khatedari rights to an extent of 1/6 share in Jesya''s erstwhile khatedari of 11 bighas 1 biswa. Relief as to partition, correction of entries and permanent injunction was also granted consequent to the declaration.

The judgment and decree dated 16-5-2002 was challenged by both the parties i.e. the plaintiffs and defendants by filing appeals No. 102/2002 and 104/2002 before the Revenue Appellate Authority Sawai Madhopur (hereinafter ''RAA''). The plaintiffs were aggrieved of only half the suit land being decreed in their favour and the defendants were dissatisfied with the judgment and decree altogether. The RAA vide judgment dated 16-9-2003 while dismissing the appeal filed by the plaintiffs, allowed the appeal of defendants on the ground that the gift deed dated 18-6-1975, executed by Felu in favour of Bhurji, being a registered document could not be set aside by a revenue court or overlooked. A registered document was operative until cancelled by a competent Civil Court, and consequently the plaintiffs were not entitled to any relief which had been wrongly granted by the Assistant Collector Sawai Madhopur.

The judgment dated 16-9-2003 passed by the RAA was challenged by the plaintiffs before the Board by filing a second appeal. Vide judgment dated 20-9-2011 the Board while setting aside the judgment and decree dated 16-9-2003 passed by the RAA, restored the judgment and decree 16-5-2002 passed the trial court i.e. Assistant Collector and issued further directions as detailed hereinabove.

Heard learned counsel for the defendants and perused the material available on record.

On the basis of Exhibits 1 and 2 both Jamabandis (revenue record) as also the evidence of Ramniwasi (PW.1), Kailash Chand (PW.2) and Bharosi (PW.3), who remained unshaken in cross examination, it was established that the suit land was ancestral in the hands of Felu. Felu''s son Kanhaiya pre-deceased him on 15-12-1975 leaving behind his wife and two children. In the circumstances Kanhaiya''s rights in ancestral land devolved on his wife and two children. Consequently, the Assistant Collector, rightly held that the registered gift deed dated 18-6-1975 executed by Felu in favour of Bhurji, the ancestor of defendants, negating the rights of his family members was void ab initio as against the plaintiffs to the extent of their share and ineffective against them. Consequently in terms of Section 207 of the Rajasthan Tenancy Act, 1955 (hereinafter ''the 1955 Act'') read with Schedule III thereof the plaintiffs'' suit for declaration, correction of entries, partition and permanent injunction relating to khatedari rights was within the jurisdiction of revenue courts and liable to be decreed. The RAA misdirected himself in setting aside the Assistant Collector''s well considered judgment and decree dated 16-5-2002 on the specious ground that the relief prayed by the plaintiffs could not be addressed without the registered gift deed dated 18-6-1975 being set aside. He failed to appreciate the law laid down in the case of Jaswant Singh Vs. State of Rajasthan [ILR 1984 (34) Raj. 416] and in the case of Mohanlal Vs. Ratna, that where a conveyance in respect of khatedari land is impugned and established to be void ab initio, it cannot obstruct a suit for declaration of khatedari rights, partition etc. before a competent revenue court in view of the provisions of Section 207 of the 1955 Act read with Schedule III thereof which confer exclusive jurisdiction on revenue courts for such suits. The Board of Revenue being cognizant of the correct legal position and taking into consideration the main relief in the plaintiffs'' suit and its pith and substance relating to declaration of khatedari rights in agricultural land and reliefs of partition, correction of entries has held that the registered gift deed dated 18-6-1975 executed by Felu in favour of Bhurji, the ancestor of defendants, was without authority of law and void ab initio qua the extent of Kanhaiya''s share and not binding on his successors, the plaintiffs. And in the circumstances, the RAA in his impugned judgment and decree had misdirected himself in law in holding to the contrary beguiled by the existence of a registered gift deed executed without authority and thus ab initio void.

Counsel for the petitioners-defendants has not been able to make out any ground to interfere with the Board''s well considered judgment and decree dated 20-9-2011 which correctly restates the law rendered by the court in the case of Jaswant Singh (supra) and Mohan Lal (supra). The conclusions of Assistant Collector and the Board as to the ancestral nature of the land in the hands of Felu and the consequent rights of his predeceased son Kanhaiya thereon and that of his family after his death, are based on documentary and oral evidence. Counsel for the petitioner has been unable to point out any perversity in the conclusions qua that fact on the basis of evidence before the Assistant Collector and the Board.

In the circumstances, no legal ground is made out to interfere in this petition under Article 226/227 of the Constitution of India. Petition is therefore dismissed.