RAJASTHAN HIGH COURT
Sangeet Lodha, J.
Pawan Kumar - Petitioner
Versus
Board of Revenue for Rajasthan, Ajmer and Ors. - Respondents
S.B. Civil Writ Petition No. 14739 of 2013
Decided On : 28-10-2014
Constitution of India – Article 227 – Civil Procedure Code, 1908 – Order 32, Rule 1 and 4 – Rajasthan Tenancy Act, 1955 – Section 212, 88 and 188 – Hindu Minority and Guardianship Act – Section 6 – Appellate Authority – Suit for Declaration – Injunction against Adoptive – Restrained from Alienating – Disputed Land – Writ petition is directed against order Board of Revenue Rajasthan whereby a revision petition preferred by petitioner against order preferred a suit for declaration and permanent injunction against his adoptive father first respondent under provisions of Section 88 & 188 of Act, in respect of ancestral land measuring hectare comprising situated in village petitioner also filed an application seeking injunction under provisions of Section 212 of Act, claiming temporary injunction in terms that during pendency of suit first respondent may be restrained from alienating disputed land – Held, Petitioner adopted first respondent by way of a registered adoption deed. Merely because legality of adoption deed is questioned by first respondents wife by filing a suit before court of competent jurisdiction same does not become inoperative. It is not disputed before this court that property in question is ancestral property may be that it was recorded in revenue record in name of first respondent after death of his father. Thus, at this stage it cannot be concluded that petitioner a minor, cannot claim any right whatsoever in disputed property on strength of alleged adoption matter considered opinion of this court right of minor in property in question claimed on basis of alleged adoption deserves to be protected – petition is allowed.
Sangeet Lodha, J.
This writ petition is directed against order dated 22.11.13 of the Board of Revenue Rajasthan, whereby a revision petition preferred by the petitioner against the order dated 30.9.13 passed by the Revenue Appellate Authority (RAA), Hanumangarh dismissing the appeal preferred by the petitioner against the order dated 9.1.12 passed by the Sub Divisional Officer, Nohar refusing to grant injunction prayed for by way an application preferred under Section 212 of Rajasthan Tenancy Act, 1955 (for short "the Act"), stands dismissed.
2. The petitioner (minor), through her natural mother (next friend), preferred a suit for declaration and permanent injunction against his adoptive father, the first respondent, under the provisions of Section 88 & 188 of the Act, in respect of ancestral land measuring 8.096 hectare comprising khasra no. 496/348 situated in village-Malwani, Tehsil & District Churu. The petitioner also filed an application seeking injunction under the provisions of Section 212 of the Act, claiming temporary injunction in terms that during the pendency of the suit, the first respondent may be restrained from alienating the disputed land.
3. The suit is being contested by the first respondent by filing a written statement thereto. The first respondent has denied the factum of adoption and has taken the stand that the adoption deed is a forged document. It is averred that a suit filed by the adoptive mother of the petitioner for cancellation of adoption deed is pending consideration before the civil court of competent jurisdiction. According to the first respondent, his father having expired in the Samvat 2031, he was recorded as sole khatedar of the land in question in the revenue record and therefore, on the basis of alleged adoption deed dated 11.5.10, the petitioner cannot claim any right therein.
4. After due consideration of the rival submissions, the trial court arrived at the finding that the suit preferred by the adoptive mother of the petitioner for cancellation of the adoption deed is pending consideration before the civil court and as on the date of alleged adoption, the first respondent was the sole khatedar of the land and therefore, the petitioner has no prima facie case in his favour. Accordingly, the application seeking temporary injunction preferred by the petitioner was dismissed.
5. Aggrieved thereby, the petitioner preferred an appeal before the RAA, Hanumangarh. The RAA observed that the adopted son acquires same rights in the ancestral property, which are available to natural born son and a minor child is also entitled to avail the appropriate remedy for protection of his rights in accordance with law. Accordingly, the RAA found that the reasons assigned while rejecting the application seeking temporary injunction by the trial court do not appear to be just and proper. However, the RAA dismissed the appeal observing that the natural mother of the petitioner(minor) could not have filed the suit on his behalf without being appointed as his guardian by the court of competent jurisdiction.
6. Aggrieved by the order passed by the RAA dismissing the appeal, the petitioner preferred a revision petition before the Board of Revenue, which stands rejected by the order impugned. Hence, this petition.
7. Learned counsel for the petitioner submitted that the trial court dismissed the application seeking temporary injunction on the basis that the petitioner has not been able to make out prima facie case in his favour, however, the reasoning adopted by the trial court was found to be erroneous by the RAA. Learned counsel submitted that the RAA has seriously erred in dismissing the appeal solely on the technical ground that the natural mother of the petitioner cannot maintain a suit on behalf of the minor without being appointed as legal guardian of the minor by the competent court. Learned counsel submitted that as a matter of fact, any person can be next friend of a minor plaintiff if he is not of
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