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2016 Supreme(Raj) 498

IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)
Ajit Singh and M.N. Bhandari, JJ.
Badri Bai & Ors. - Appellants
Versus
The Board of Revenue for Rajasthan & Ors - Respondents
D.B. Civil Special Appeal(W) No. 116 of 2015 with S.B. Civil Writ Petition No. 5531 of 2014
Decided on : 26-02-2016

Advocates Appeared:
For the Appellant :Arvind Bhardwaj, Advocate.
For the Respondent:D.V. Tholia, Additional Advocate General, Shobha Ram, Ajay Singh Poonia, Advocate.

Headnote:Rajasthan Tenancy Act, 1955, Sections 88 and 53 – Claim was based upon adoption of "D" by "K" the erstwhile Khatedar of suit Land – Neither any proof regarding about particulars of the adoption set out nor it was proved – Law does not permit conclusions of adoptions based upon inferences – Mere mutation entry doesn't prove the factum of the adoption which had to be proved independently – Revenue Board has not committed any error in setting aside judgment of the Revenue Appellant Authority (RAA) – Writ petition is allowed.

JUDGMENT :

By this Special Appeal, the judgment of the learned Single Judge so as the Board of Revenue has been assailed. A suit was preferred by the appellant claiming right in the land in dispute. The suit was dismissed, however on appeal, the Revenue Appellate Authority decreed the suit. On second appeal before the Board of Revenue, the order of the Revenue Appellate Authority was reversed while maintaining the order of the first Revenue Court. On a writ petition preferred by the appellant, the order passed by the Board of Revenue has been maintained.

2. Learned counsel for the appellants submits that after the death of original khatedar of the land in dispute, the name of the appellant's father and wife of the deceased was mutated. The appellant's father was shown to be adopted son of deceased Duli Chand. The entry in the 'Jamabandi' remained for more than 60 years and based on it, a suit was filed by the appellant. It should have been decreed. The Revenue Appellate Authority had drawn proper conclusions to decree the suit. It was wrongly interfered with by the Board of Revenue and the order passed by the Board of Revenue has been upheld by the learned Single Judge. The evidence produced by the appellant was sufficient to prove adoption and for consequential rights in the property. In the other suit, Shobha Ram and parties had taken altogether different stand. In view of above, the impugned order passed by the Board of Revenue so as the learned Single Judge may be set aside while maintaining the order passed by the Revenue Appellate Authority.

3. The appeal has been opposed by the learned counsel appearing for the non-appellants. They submit that claim in the suit is based on the adoption of the appellant's father. It could not be established by the appellant by leading evidence. The original Revenue Court thus dismissed the suit, however, the Revenue Appellate Authority interfered in it. The Board of Revenue set aside the order passed by the Revenue Appellate Authority. Learned Single Judge maintained the order of the Board of Revenue keeping in mind limited jurisdiction of this Court under Article 226 and 227 of the Constitution of India. There exists no perversity in the order passed by the Board of Revenue so as to cause interference and, accordingly, the writ petition was rightly dismissed. The order passed by the Board of Revenue so as the learned Single Judge may be maintained.

4. We have scanned the matter carefully and gone through the record.

5. A perusal of the order passed by the Board of Revenue reveals that the appellant herein could not establish adoption of his father by the original landholder. In absence of adoption, the appellant could not inherit the rights form his father's property. The learned Single Judge has discussed the issues at length in reference to the pleadings so as the evidence led by the parties and found that the very basis to claim right in the disputed land could not be established by the appellant. Learned counsel for the appellant has referred mutation opened in the name of appellant's father and wife of the deceased after the death of the khatedar. The opening of mutation alone cannot establish the adoption. It is more so when no adoption deed or any evidence for it could be submitted by the appellant to the satisfaction of the original Revenue Court so as the Board of Revenue. Learned Single Judge thus refused to cause interference in the order passed by the Board of Revenue. It is not only for the reason that no perversity exists so as to cause interference but keeping in mind the limited jurisdiction of this Court while exercising jurisdiction under Article 226 and 227 of the Constitution of India. A reference of the judgment of the Supreme Court in the case of Sadhana Lodh v. National Insurance Co. Ltd. And Another, (2003) 3 SCC 524, has been given and paras 7 and 8 of the judgment are quoted hereunder to show as to what extent this Court can exercise its jurisdiction under Article 2






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