Sitaram And Ors vs Bhonrilal And Ors

Veerender Singh Siradhana, J.

Inextricably interlinked are the questions of facts and law involved in the above-noted two writ applications, and therefore, the matters have been taken up for final adjudication at this stage, by this common order, consented by the counsel for the parties. For the sake of convenience factual matrix and pleading of the writ application of Sitaram and others has been referred to and take note of.

Aggrieved of the judgments and orders dated 8th June, 2016, 22nd July, 2015 and 6th March, 2013, so also 23rd April, 2012; the petitioners have instituted the present writ applications praying for the following relief(s):

"i) The impugned judgment and order dated 8.6.2016, order dated 22.7.2015, order dated 6.3.2013 and order dated 23.4.2012 may kindly be declared illegal and the same may kindly be quashed and set aside;

ii) Any other order or direction which may be deemed fit to the facts and circumstances of the case, may kindly be passed in favour of the petitioner.

iii) Cost of the writ petition may kindly be awarded to the petitioner."

Briefly, the essential skeletal material facts, which needs to be taken note of for appreciation of the controversy raised are: that Ghasi son of Deva, recorded Khatedar of 1/3 share of the subject land involved herein in Khasra No. 9, and 1/4 share of the land covered under Khasra No. 10, was succeeded after his death vide Mutation No. 4, sanctioned on 3rd January, 1994, in favour of deceased Mangi, daughter of Late Ghasi. Contesting respondent - Bhonri Lal instituted an appeal against the order dated 3rd January, 2019, made by the Tehsildar before the Additional Collector-II, Jaipur, successfully. The Additional Collector-II, Jaipur, while allowing the appeal vide its order dated 12th July, 1997, remanded the matter back to the Tehsildar for adjudication afresh taking into consideration the Will that was allegedly executed in favour of respondent - Bhonri Lal. The Tehsildar, upon hearing the learned counsel for the parties afresh and recording evidence adduced by the parties as well as on an inquiry into the matter as to the execution of the alleged Will in favour of respondent - Bhonri Lal; maintained Mutation No. 4 dated 3rd January, 1994; holding that Bhonri Lal failed to prove execution of the Will allegedly executed in his favour. Respondent - Bhonri Lal unsuccessfully instituted the appeal before the Additional Divisional Commissioner so also before the Board of Revenue for Rajasthan, Ajmer. However, later on, respondent - Bhonri Lal again instituted a suit before the Court of ACM-II, Jaipur, who in turn made a declaration and decree in favour of respondent - Bhonri Lal on 23rd April, 2012. The petitioners unsuccessfully instituted an appeal before the Revenue Appellate Authority, Jaipur, that was declined on 6th March, 2013, so also appeal and review application(s), dismissed by the Board of Revenue for Rajasthan, Ajmer, on 22nd July, 2015 and 8th June, 2016. This is how the instant writ applications have spiralled to this Court.

Learned counsel for the petitioners has assailed the legality, validity and correctness of the orders impugned on three grounds. Firstly, the question of adoption is not open for adjudication by the Revenue Courts. Secondly, the 'Will' could not have been made the subject matter of determination of rights of respondent - Bhonri Lal (adopted son), by the Revenue Courts and; thirdly, respondent - Bhonri Lal played fraud on Court; for the earlier adjudication of the matter between the same parties and on the same issue upto the Board of Revenue for Rajasthan, Ajmer, on an appeal by respondent - Bhonri Lal vide judgment dated 16th February, 2002, was suppressed while instituting proceeding all over again.

Learned counsel for the petitioners would further contend that the Revenue Courts fell in gross error in law and fact while entertaining the suit instituted by respondent - Bhonri Lal in the face of the fact that the dispute between the parties was already adjudicated upon by the Court of Tehsildar, Tehsil Sanganer, District Jaipur, vide order dated 4th August, 1998, with a specific finding that respondent - Bhonri Lal filed a photocopy of the certified copy of so-called Will and the original Will was never produced before the Tehsildar. The plea that original Will was submitted by respondent - Bhonri Lal in the Court of Additional Collector along with first appeal and could not be obtained from their; was found not tenable for even no application was instituted before the Tehsildar to call for the record of the first appeal. Further, in the face of contemplation under Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, oral evidence is not admissible to prove the admissibility of the 'Will' unless the original 'Will' was made available on record to prove the signatures of the executant(s). That apart, no oral evidence can be admitted of a document, which has been reduced to writing. Therefore, the determinations made by the Revenue Courts including the Board of Revenue for Rajasthan, Ajmer, are bad in the eye of law and without jurisdiction.

Learned counsel further averred that respondent - Bhonri Lal is guilty of playing 'fraud on Court'. It is further pointed out that the principle "fraud unravels everything" is applicable on all fours of the case at hand, and therefore, the writ applications deserves to be allowed on that count as well. In support of his stand, learned counsel for the petitioners have relied upon the following opinions:

Kishan Singh & Anr. Versus Board of Revenue & Ors.: D.B. Special Appeal (W) No. 1174/2011, decided on 29th August, 2011.

Jhamku Versus Devilal in Civil Revision No. 56/2007, decided on 9th August, 2018, at Principal Seat, Jodhpur.

Vimal Kumar Jain Versus Mahaveer Prasad Jain: Civil Revision No. 18/2005, decided on 17th October, 2005.

Mamraj & Anr. Versus Rameshwar (1969) RLW 507

C.N. Nagendra Singh Versus The Special Deputy Commissioner & Ors. (2002) ILR (Karnataka 2750), decided by the Karnataka High Court.

Per contra; Mr. M.M. Ranjan, learned Senior Counsel, repelling the contentions raised by the learned counsel for the petitioners, asserted that a suit of the nature involved herein, is very much maintainable in the face of contemplation under Section 88 of the Rajasthan Tenancy Act, 1955. Further, the scope of jurisdiction under Article 226 of the Constitution of India is very limited and the concurrent conclusions arrived at by three Forums need no interference on that count as well.

Learned Senior Counsel, referring to the contents of the judgment and order dated 16th February, 2002, would contend that the proceedings instituted by the petitioners in the year 2008, were rightly instituted in view of the liberty reserved to the petitioners by the Board of Revenue for Rajasthan, Ajmer, while declining the appeal of respondent - Bhonri Lal. Moreover, the Board of Revenue for Rajasthan, Ajmer, has declined the appeal of the petitioners on the ground of delay for it was instituted after an inordinate delay of two years and ten months. In support of his stand, learned counsel has relied upon the following opinion(s):

R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami and V.P. Temple and Anr. 2003 (8) SCC 752

Smt. Manjula Devi vs. Smt. Manphooli Devi: SBCWP No. 12041/2018

I have heard the learned counsel for the parties and with their assistance, perused the relevant materials available on record as well as gave my thoughtful consideration to the submissions at Bar.

Indisputably, the dispute as to the claim of respondent - Bhonri Lal was raised, considered and adjudicated upon upto the Board of Revenue for Rajasthan, Ajmer, as would be evident from a glance of the order dated 6th February, 2002, placed on record by the petitioners with an application for taking the documents on record annexed thereto. A glance of the order dated 16th February, 2002, would further reflect that respondent - Bhonri Lal failed to prove the factum of adoption so also execution of the 'Will'. At this juncture, it will be profitable to take note of the contents of paragraph 7 and 8 of the adjudication made by the Board of Revenue for Rajasthan, Ajmer, on an appeal instituted by respondent - Bhonri Lal, which reads thus:

"7. It is undisputed that deceased respondent Mangi's father Ghasi was recorded khatedar of the land in dispute and after death of her father mutation No. 4, was sanctioned in her favour on 3.1.94, the appellant has claimed his right on the basis of a Will alleged to have been executed by the deceased dated 10.8.92, the learned Addl. Collector remanded the case vide judgment dated 11.7.97 with the direction that the case may be decided afresh after considering the Will alleged by the appellant. Thereafter, the learned Tehsildar held an enquiry and full opportunity was given to the appellant to produce his evidence. The appellant filed a photocopy of certified copy of the alleged Will and original Will was not produced before the Tehsildar. It has been contended that the original Will had already been produced in the Court of Addl. Collector along with the first appeal and the appellant could not obtain the original Will from the appellate court. But this contention is not tenable, the appellant should have obtained the original Will from the appellate court or should have requested Tehsildar to call for the file of first appeal and thereafter the appellant should have examined his witnesses to prove the execution of the Will. The appellant did not make any effort to get the original Will produced before Tehsildar and adduced only oral evidence. Looking to the provisions contained in Section 63 of the Indian Succession Act and Section 68 of the Evidence Act mere oral evidence is not admissible to prove execution of Will unless the original Will is shown to the witnesses and he proves signatures of the executant as well as of himself on the document of Will. Apart from this, oral evidence is also not admissible for a document which had been reduced in the writing. Therefore, Tehsildar committed no error in not considering the oral evidence produced by the appellant. The first appellant court has affirmed the finding of the Tehsildar that the execution of Will is not proved in absence of the original deed of Will.

In the case of Narain Vs. Rukma, Tehsildar sanctioned mutation in favour of all legal representatives of the deceased which was challenged in appeal by Narain alleging that the deceased had executed a Will in his favour. The first appellate court allowed the appeal and remanded the case to Tehsildar. Aggrieved by the judgment of the first appellate court, Rukma and others filed second appeal before Addl. Divisional Commissioner, which was allowed and order of Tehsildar was restored. Then Narain filed revision petition before the Board of Revenue. In that case it was held that after the death of recorded khatedar mutation was sanctioned by Tehsildar in favour of all legal representatives of the deceased was just and proper, if someone claims any right on the basis of Will, then he could establish his right through regular suit. In case of Surendra Bhatia the question of execution of Will was holly contested and that matter pertaining to granting of succession certificate on the basis of a Will alleged to have been executed by the deceased. In that case testator died living behind widow and minor and testator's widow applied for succession certificate claiming that the purported Will of the testator in favour of his brother was false and shrouded with suspicious circumstances. In these facts and circumstances it was held that there was no evidence whatsoever brought by the defendant, even not a single incident of any strained relations between testator and his wife has been stated, and in such circumstances if both husband and wife were living normally and even child is born, why should after all the husband deprived of his wife from inheritance; there was no explanation nor any evidence to warrant such action. This case requires consideration when regular suit pending between the parties comes for final decision. In the present case, the appellant produced mere oral evidence before the learned Tehsildar which could not be considered on the simple reason that the appellant did not produce the original Will before Tehsildar and no attempt was made to prove the execution of the Will.

Therefore, order of Tehsildar seems to be perfectly justified that the appellant failed to prove the daughter of the deceased recorded khatedar Ghasi, she was entitled for inheritance and mutation sanctioned in favour of the respondent Smt. Mangi on 3.1.94 was restored by Tehsildar. There is no evidence on record that regular suit between the parties is pending in a competent court and which party has instituted the suit. The appellant has claimed his right on the basis of Will alleged to have been executed by the deceased and inspite of affording opportunity to lead evidence before Tehsildar, he failed to produce the original Will. If he claims right on the basis of a Will then he is free to establish his right through a regular suit in the competent court. Unless right of succession on the basis of a Will is declared in favour of the appellant, he cannot claim sanctioning of mutation in his favour.

In view of the above discussions, the contentions of the learned counsel for the appellant are not sustainable and the courts below have not committed any error in passing the impugned judgment. Thus, this appeal is devoid of any merit and it is hereby dismissed.

Pronounced in the open court."

From the findings arrived at by the Board of Revenue for Rajasthan, Ajmer (supra), would leave no room for any doubt that the factum of 'adoption' and 'Will' were considered and determined against respondent - Bhonri Lal. Further, the adjudication made by the Board of Revenue for Rajasthan, Ajmer, vide judgment on an appeal instituted by respondent - Bhonri Lal, dated 16th February, 2002, attained finality as it was not challenged any further. Thus, the respondent - Bhonri Lal is guilty of playing 'fraud on Court' for the determination on his appeal vide judgment dated 16th February, 2002, was not disclosed while instituting proceedings afresh.

In the case of Kishan Singh & Another (supra), the Division Bench of this Court while considering the issue of jurisdiction to decide on validity of a 'Will' held thus:

"The revenue courts have also not interfered with the entries made in the revenue records based on the Succession Certificate obtained by Sohan Singh in whose favour Will was executed by Sadhu Singh and the appellants have also not challenged the execution of the said Will in any civil court and have taken untenable plea in the suit filed before the revenue courts alleging that the said Will was a forged or concocted one. Such a plea was not only untenable before the revenue courts, the revenue court has also right not decided about the validity of said Will"

In the case of Smt. Jhamku And Anr (supra), it has been held in no uncertain terms that jurisdiction to decide the validity lies with the Civil Court and not Revenue Court, the relevant text reads thus:

"As now the stand of the petitioner pertaining to the Will relied on by the plaintiff is explicitly clear, wherein, he has questioned the validity of the Will on several grounds, the validity of the Will needs to be adjudicated in the present suit and jurisdiction pertaining to validity of the Will ex facie lies with the civil court and the revenue court cannot adjudicate the validity of the Will."

In the case of Vimal Kumar Jain (supra), a Coordinate Bench of this Court against held that issue of validity of Will and declaration can be made by Civil Courts and Revenue Courts, the contextual text reads thus:

"In the present case, while examining substance of the plaint, plaintiff's case is virtually for a declaration of Wills to be non-est and void and further ancillary relief is claimed for declaration claiming half share in suit property referred to in the Wills including agricultural land in question also. In this view of matter, trial Court has not committed any error of jurisdiction in holding that primarily relief claimed for is questioning validity of Wills and declaration can only be granted by civil court and not by revenue courts, unless those Wills are declared non est and void, no other ancillary relief as claimed for in the suit can be granted by other court competent to adjudicate upon. The plaintiff primarily has questioned the validity of execution of Wills by its testator in favour of defendant, for which in my considered opinion, relief can exclusively be granted by a Civil court only and I find that explanation to S. 207 read with Items 3 & 5 of Schedule III to the Tenancy Act are not applicable in facts situation of instant case."

In the case of Mamraj and Anr. (supra), it has been held thus:

"A perusal of the plaint shows that the plaintiff prayed for a declaration that he was the adopted son of Mamraj. We also pleaded and prayed that as Mamraj had made a gift of the ancestral property to his daughter for the purpose of depriving him of his right, it should be declared void and inoperative against him. It therefore follows that even if it is assumed for the make of argument that the dispute in the suit related exclusively to agricultural lands, the real and actual cause of action was the plaintiff's claim to be the adopted son of Mamraj and to own the property with him in that capacity. Section 33(1) of the Rajasthan Tenancy Act cannot therefore govern this case. So also it cannot be said that the plaintiff sued for a declaration of all or any of his rights conferred by the Tenancy Act within the meaning of Section

Sections 88 and 91 have therefore no application to the present suit and Gulla v. Doliya and Ors. ILR 1952 Raj. 355 and Shrichand and Ors. v. Daulat Ram and Ors. ILR 1952 Raj. can be of no benefit to the appellants. The former was a suit for the declaration of tenancy rights in a well and for division of a share in the lands attached to the well. It was therefore rightly held to be a suit triable by a revenue court. In the latter case also, the suit was for a declaration that the plaintiffs were the owners of certain shares in agricultural land, and also for its redemption. It was held that the suit fell to be tried by a revenue court in accordance with the provisions of the Revenue Courts (Procedure and Jurisdiction) Act, 1951. These cases therefore clearly distinguishable. It may be mentioned that it is admitted by the learned Counsel for the appellants that apart from Sections 85 and 91 of the Rajasthan Tenancy Act, the suit can not be said to fall within the purview of any other provision of that Act.

It is true that the question of adoption can be decided by a revenue court when it is necessary for the purpose of deciding a suit based on a cause of action for which a suit in a revenue court is the only appropriate remedy. Thus in the case of Chimna v. The Board of Revenue, Rajasthan and Anr. ILR 1955 Raj. 303 the suit was for a right which could be claimed only in a revenue court, while in Jagannath and Ors. v. Balwant Singh and Ors. AIR 1969 P.C. 72 the only dispute was regarding the nature of the tenancy, and adoption was an incidental issue. It cannot therefore avail the learned Counsel for the appellants to argue merely that there are decisions to the effect that a question of adoption can also be validly decided by a revenue court. That may well be so, but it cannot by itself justify the trial of a suit like the present in such a court."

Applying the principles deducible from the opinions referred to herein-above, to the factual matrix of the case at hand; it is evident that respondent - Bhonri Lal's claim on the basis of the alleged Will could only be considered and adjudicated upon by a Civil Court and not by the Revenue Courts. Moreover, the respondent - Bhonri Lal having suppressed the material fact of determination of the very same issue between the same parties on his own appeal upto the Board of Revenue for Rajasthan, Ajmer, and his appeal was dismissed vide order dated 16th February, 2002; the impugned judgments and orders cannot be sustained.

In the case of Manjula Devi (supra), this Court dealt with entirely on a different controversy wherein the alleged sale deed that was executed on 7th August, 1975, made a recital of its execution by Late Shri Kesri Chand, who died on 14th January, 1974. Further, there was not even a whisper in the entire document/alleged sale deed, stating that Late Shri Kesri Chand ever transferred possession of the subject land in dispute to the petitioner in that case. Furthermore, the alleged document/sale deed, admittedly, did not bear signature of Late Shri Kesri Chand. Thus, it would be evident that the factual matrix of the case referred to and relied upon is entirely different and distinguishable from the matters at hand.

For the reasons and discussions aforesaid so also in singular factual matrix of the matters at hand; the writ applications merits acceptance.

In the result, the writ applications succeed and are hereby allowed. The impugned orders dated 8th June, 2016, 22nd July, 2015 and 6th March, 2013, so also 23rd April, 2012, are quashed.

However, in the facts and circumstances of the case, there shall be no order as to costs.