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2015 Supreme(Raj) 20
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR
SUNIL AMBWANI and PRAKASH GUPTA, JJ.
Smt.Onkari & Ors. –Appellants
Vs.
Board of Revenue Rajasthan, Ajmer & Ors. –Respondents
CIVIL SPECIAL APPEAL (WRIT) NO.529/2014
Decided On : 21.1.2015
Advocate Appeared:
Mr.K.K.Mehrishi, Senior Advocate assisted by
Mr.Sanjay Mehrishi for the appellants.
Headnote:Rajasthan Tenancy Act, 1955, Sec. 239 — Adoption — Question of proprietary right — Previously not determined by Civil Court of competent jurisdiction — `G' claimed adoption by `S' some 60 years ago — Not referred to any date, or even year of such adoption — Revenue record show his name was mutated as son of `H' — No evidence of adoption was produced — Held — The entire claim was to oust his three brothers from the properties recorded in the name of `S' his maternal grandfather — Where there are vague and indefinite pleadings, and no substantial material has either been referred to in the pleading, or produced, the revenue courts are not bound to treat such a plea as question of proprietary right and refer the matter to the Civil Court. (Paras 10 to 12)
Appeal dismissed.
jktLFkku dk'rdkjh vf/kfu;e] 1955] /kkjk 239] nRrd xzg.k & lkEifrd vf/kdkj dk iz'u & l{ke vf/kdkfjrk okys U;k;ky; }kjk iwoZ esa vo/kkfjr ugha fd;k x;k & ^th* us nkok fd;k fd 60 o"kZ iwoZ ^,l* us mls xksn fy;k Fkk & ,sls fdlh nRrd xzg.k dh dksbZ frfFk ;k o"kZ rd dk Hkh mYys[k ugha fd;k & jktLo vfHkys[k n'kkZrk gS fd mlds uke fd;s x;s ukekUrjdj.k mls ^,p* dk iq= n'kkZ;k x;k gS & nRrd xzg.k dk dksbZ lk{; is'k ugha fd;k x;k & vfHkfu/kkZfjr & lEiw.kZ nkok mlds ukuk ^,l* ds uke ntZ lEifRr;ksa esa ls vius rhu Hkkb;ksa dks foLFkkfir djuk Fkk & tgka vLi"V vkSj vfuf'pr vfHkokd~ gks] vkSj vfHkokd~ esa fdlh lkjHkwr lk{; dk ;k rks dksbZ mYys[k ;k is'k ugha fd;k x;k gks rks jktLo U;k;ky; ,sls vfHkokd~ dks lkEifrd vf/kdkj ds iz'u ds :i esa ekuus vkSj mls nhokuh U;k;ky; dks funsZf'kr djus gsrq ck/; ugha gSA ¼in la[;k 10 ls 12½
vihy [kkfjt dhA
1. We have heard learned Senior Counsel appearing for the appellants.
2. Learned Single Judge has dismissed the writ petition arising out of the suit for declaration, partition and injunction filed by Kalyan and Chauthmal, the real brothers of Gopi, all sons of Hazari. The suit was decreed, declaring that all the four brothers, namely, Kalyan-plaintiff respondent No.1, Chauthmal, Gopi and Lodkya have inherited the properties of their father late Shri Hazari in equal shares. An appeal arising out of the order dated 21.4.2010 passed by Sub Divisional Officer, Uniyara, District Tonk was dismissed by the appellate authority on 29.4.2011, and a second appeal was dismissed by the Revenue Board on 21.7.2011, against which the writ petition was filed. Learned Single Judge did not find any good ground to interfere with the concurrent judgments of the revenue authorities, and dismissed the writ petition, giving rise to this Special Appeal.
3. It is submitted by learned Senior Counsel appearing for the appellants that the appellants are heirs and legal representatives of late Gopi. Learned Single Judge committed gross error of law in holding that Hazari, father of Gopi, the predecessor-in-interest of the appellants inherited the properties of Sukha, as he had married his daughter Bhanwar Bai and was living as ghar jamai.
4. Late Sukha did not have any son; he had two daughters Bhanwar Bai and Kali Bai. Bhanwar Bai married Hazari, who had four sons including Sukha. The revenue suit was filed by Kalyan and Chauthmal, both sons of Hazari alleging that the plaintiffs and respondents are joint owners, and are in possession of the khatas as described in the suit, and were depositing the land revenue. Sukha did not have any son. He had only two daughters, namely, Bhanwar Bai and Kali Bai. Bhanwar Bai lived with him throughout his lifetime. Her husband was living as ghar jamai, and was looking after his properties. On the death of Sukha, all the properties were recorded in the name of Gopi, as he was the eldest son of Hazari. During the lifetime of Hazari, plaintiff and defendants have partitioned the property, and since thereafter, they were in separate possession of their shares in the land.
5. In the written statement, Gopi set up a plea that his maternal grandfather Sukha had adopted him 60 years prior to filing of the suit. An adoption deed was executed and registered, after performing the rites, in accordance with the social customs, and thus, the entire properties of Sukha were inherited by Gopi.
6. The trial court framed three issues namely;
(i) Whether the plaintiff and defendants are real brothers, and are sons of late Hazari, and are joint owners in possession of the suit property, and in possession of the plots in suit, with total area of 6.2 hectares?
(ii) Whether the plaintiffs are entitled to get partition of the land?
(iii) Whether the property in dispute was owned by Sukha, who had taken defendant No.1 in adoption, and accordingly defendant No.1 is the sole owner of the property?
7. On the question of adoption, while deciding issue No.3, it was held by the trial court that the property in dispute was owned by late Sukha, the maternal grandfather of defendant No.1. Defendant No.1 did not produce any document in proof of adoption. Since he was the eldest son of late Sukha, his name alone was recorded in the revenue records, and in this manner, late Gopi is not only the sole holder of the khata. The suit was decreed to the extent of declaration that all the four brothers, who are sons of late Hazari, were joint owners of the properties. The appellate authority confirmed the decree, upholding the findings, with observations that the name of late Gopi was recorded in the revenue records, both as son of Sukha and son of Hazari. Whereas in respect of khata No.25 area 6.49 hectares, name of late Gopi was recorded as son of late Sukha; in respect of khata No.26 area 6.62 hectares, his name was recorded as son of late Hazari. The
