Rajasthan High Court

Bhonrilal S/O Kajod, Adopted S/O ... vs Rameshwar S/O Shri Laxmi Narayan on 25 August, 2021

Bench: Sangeet Lodha, Mahendar Kumar Goyal

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

           (1) D.B. Special Appeal Writ No. 1719/2019

                                      In

              S.B. Civil Writ Petition No.15556/2016

Bhonrilal S/o Kajod, Adopted S/o Late Shri Gashi, R/o Gram
Narsinghpura @ Dadiya, Tehsil Sanganer, District Jaipur.
                                      ----Appellant/Respondent/Plaintiff

Versus

1. Rameshwar S/o Shri Laxmi Narayan, Narsinghpura @ Dadiya, Tehsil Sanganer, District Jaipur Raj.

-----Non Appellant/Petitioner/Defendant

2. Sitaram Son Of Shri Gopal, Resident Of Narsinghpura @ Dadiya, Tehsil Sanganer, District Jaipur Raj. (Legal Heirs Of Late Smt. Mangi)

3. Ramratan Son Of Shri Gopal, Resident Of Narsinghpura @ Dadiya, Tehsil Sanganer, District Jaipur Raj. (Legal Heirs Of Late Smt. Mangi)

4. Babulal Son Of Shri Gopal, Resident Of Narsinghpura @ Dadiya, Tehsil Sanganer, District Jaipur Raj. (Legal Heirs Of Late Smt. Mangi)

5. Kalu Son Of Shri Laxminarayan, Narsinghpura @ Dadiya, Tehsil Sanganer, District Jaipur Raj.

6. Gyarsa Son Of Shri Laminarayan, Narsinghpura @ Dadiya, Tehsil Sanganer, District Jaipur Raj.

7. Sub Registrar, Tehsil, Sanganer, District Jaipur Raj.

8. Tehsildar, Sanganer, District Jaipur Raj.

9. Narayan Son Of Shri Bhura, Narsinghpura @ Dadiya, Tehsil Sanganer, District Jaipur Raj.

10. Smt. Kamla Daughter Of Shri Gopal, Wife Of Shri Ram Sahay, Resident Of Narsinghpura @ Dadiya, Tehsil Sanganer, District Jaipur Raj.

11. Smt. Gulli Daughter Of Shri Gopal, Wife Of Shri Babulal, Resident Of Narsinghpura @ Dadiya, Tehsil Sanganer, District Jaipur Raj.

12. Smt. Bhuri Daughter Of Shri Gopal, Wife Of Birdi Chand, Gaon Mahal, Tehsil Sanganer, District Jaipur

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13. Gopal Son Of Shri Laduram, Gaon Beelwa, Tehsil Sanganer, District Jaipur

14. Smt. Soni Widow Of Sonji @ Sohan Lal, Resident Of Narsinghpura @ Dadiya, Tehsil Sanganer, District Jaipur Raj.

15. Ram Rai Son Of Late Shri Sonji @ Sohan Lal, Resident Of Narsinghpura @ Dadiya, Tehsil Sanganer, District Jaipur Raj.

16. Ramkishor Son Of Late Shri Sonji @ Sohan Lal, Resident Of Narsinghpura @ Dadiya, Tehsil Sanganer, District Jaipur Raj.

17. Suraj Son Of Shri Bhura, Resident Of Narsinghpura @ Dadiya, Tehsil Sanganer, District Jaipur Raj.

18. Ram Sahay Son Of Shri Bhura, Resident Of Narsinghpura @ Dadiya, Tehsil Sanganer, District Jaipur Raj.

19. Shankar Lal Son Of Shri Bhura, Resident Of Narsinghpura @ Dadiya, Tehsil Sanganer, District Jaipur Raj.

20. Smt. Kailashi Devi Daughter Of Shri Gopal, Wife Of Shri Ramji Lal, Dudala, Tehsil Bassi, District Jaipur Raj.

----Performa Respondents Connected With (2) D.B. Special Appeal Writ No. 1746/2019 In S.B. Civil Writ Petition No.10140/2018 Bhonrilal S/o Kajod, Adopted S/o Late Shri Gashi, R/o Gram Narsinghpura @ Dadiya, Tehsil Sanganer, District Jaipur.

----Appellant/Respondent/Plaintiff Versus

1. Sitaram S/o Shri Gopal, R/o Gram Bilwa, Tehsil Sanganer, District Jaipur.

2. Ramratan S/o Shri Gopal, R/o Gram Bilwa, Tehsil Sanganer, District Jaipur.

3. Babulal Gopal S/o Shri Gopal, R/o Gram Bilwa, Tehsil Sanganer, District Jaipur.

------Non Appellants/Petitioners/Defendants

4. Gyarsha S/o Laxminarayan, R/o Gram Narsinghpura @ Dadiya, Tehsil Sanganer, District Jaipur.

5. Rameshwar S/o Laxminarayan, R/o Gram Narsinghpura @

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Dadiya, Tehsil Sanganer, District Jaipur.

6. Tehsildar, Sanganer, District Jaipur.

7. Narayan S/o Bhura, R/o Gram Narsinghpura @ Dadiya, Tehsil Sanganer, District Jaipur.

8. Smt. Kamla D/o Gopal, W/o Ram Sahai, R/o Gram Narsinghpura @ Dadiya, Tehsil Sanganer, District Jaipur.

9. Smt. Gulli, D/o Gopal, W/o Babulal, R/o Gram Narsinghpura @ Dadiya, Tehsil Sanganer, District Jaipur.

10. Smt. Bhuri D/o Gopal W/o Birdichand, R/o Gram Mahal, Tehsil Sanganer, District Jaipur.

11. Gopal S/o Laduram, R/o Gram Bilwa, Tehsil Sanganer, District Jaipur.

12. Smt. Soni, Widow Of Sonji @ Sohanlal, R/o Gram Narsinghpura @ Dadiya, Tehsil Sanganer, District Jaipur.

13. Ramsahai, S/o Shri Sonji @ Sohanlal, R/o Gram Narsinghpura @ Dadiya, Tehsil Sanganer, District Jaipur.

14. Ramkishor S/o Shri Sonji @ Sohanlal, R/o Gram Narsinghpura @ Dadiya, Tehsil Sanganer, District Jaipur.

15. Suraj S/o Bhura, R/o Gram Narsinghpura @ Dadiya, Tehsil Sanganer, District Jaipur.

16. Ramsahai S/o Bhura, R/o Gram Narsinghpura @ Dadiya, Tehsil Sanganer, District Jaipur.

17. Shankar Lal S/o Bhura, R/o Gram Narsinghpura @ Dadiya, Tehsil Sanganer, District Jaipur.

18. Smt. Kailashi D/o Shri Gopal, W/o Ramji Lal, R/o Gram Dudali, Tehsil Bassi, District Jaipur.

19. Sub Registrar, Tehsil Sanganer District Jaipur.

----Proforma Respondents

For Appellant(s) : Shri R.K. Agarwal, Sr. Advocate with Shri Pankaj Sharma For Respondent(s) : Shri Rajendra Prasad, Sr. Advocate with Shri Abhishek Pareek

HON'BLE MR. JUSTICE SANGEET LODHA HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Judgment

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25/08/2021

(PER HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL):

These intra court appeals are directed against the order

dated 22.7.2019 passed by the learned Single Judge whereby the

writ petitions preferred by the respondents have been allowed.

The facts in brief are that Late Ghasi S/o Deva was recorded

khatedar of 1/3rd share in the land of khasra no.9 and 1/4th share

in the land of khasra no.10 in Village Narsinghpura @ Dadiya,

Tehsil Sanganer, Jaipur. After his death in the year 1993, mutation

no.4 was sanctioned on 3.1.1994 by the Tehsildar in favour of

Smt. Mangi, his daughter. The Additional Collector-II, Jaipur vide

its order dated 12.7.1997, while allowing the appeal preferred by

the appellant herein, remanded the matter back to the Tehsildar

for adjudication afresh taking into consideration the Will executed

by late Ghasi in favour of appellant. The Tehsildar, after remand,

maintained the mutation no.4 dated 3.1.1994. The appellant

unsuccessfully instituted the appeal before the Additional

Commissioner so also before the Board of Revenue, Rajasthan (for

brevity-`the BoR'). However, the revenue suit filed by the

appellant before the Court of ACM-II, Jaipur for declaration and

permanent injunction came to be decreed in his favour vide

judgement dated 23.4.2012. The first appeal preferred by the

respondents herein was dismissed by the Revenue Appellate

Authority, Jaipur vide judgement dated 6.3.2013. The second

appeal was also dismissed by the BoR vide its judgement dated

22.7.2015 and the review petition also met the same fate vide

order dated 8.6.2016. However, the learned Single Judge, vide its

order dated 22.7.2019, allowed the writ petitions preferred by the

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contesting respondents and the judgement and decree in favour of

the appellant was set aside.

Assailing the impugned order, the learned senior counsel for

the appellant contended that the learned Single Judge erred in

allowing the writ petition on the sole ground of the judgement and

decree passed by the revenue court in his favour being hit by the

principle of res judicata inasmuch as the BoR has, vide its order

dated 16.2.2002, dismissed the appeal preferred by the appellant

arising out of mutation proceeding wherein it was held that the

appellant herein could not prove execution of Will in his favour.

Learned senior counsel contended that it is a well established

principle of law that mutation entries are fiscal entries only which

neither create, nor extinguish rights of the parties qua the land in

question and hence the findings recorded by the BoR vide its

judgement dated 16.2.2002 in appeal arising out of mutation

proceedings, could not have been held to operate as res judicata

in a regular revenue suit. He submitted that the learned Single

Judge erred in failing to appreciate that the BoR has granted

liberty to the appellant to establish his right on the basis of Will

through a regular suit in the competent court and hence, even

otherwise also, the judgment and decree in his favour granted by

a competent court in a regular suit could not have been set aside

relying on the finding recorded in the order dated 16.2.2002. He,

therefore, prayed that the impugned order dated 22.7.2019 be set

aside and the matter be remanded back to the learned Single

Judge for consideration on merit.

Per contra, learned senior counsel appearing for the

contesting respondents submitted that the appellant has failed to

produce the Will in original before the learned trial court, the sole

(6 of 7) [SAW-1719/2019]

basis of his claim and hence, the learned Single Judge committed

no error in setting aside the judgement and decree in his favour.

He submitted that the order dated 22.7.2019 is well reasoned and

does not warrant any interference by this Court in its intra court

appellate jurisdiction.

Heard learned counsel for the parties and perused the

record.

Vide impugned order, the writ petitions have been allowed on

preliminary issue of res judicata only without entering into merits

of the case. Indisputably, the order dated 16.2.2002 was rendered

by the BoR in the appeal arising out of mutation proceeding

between the parties. It is trite law that mutation proceeding is

fiscal proceeding which neither creates nor extinguishes

substantive rights of any party in the land in question and hence,

any finding recorded therein would not have operated as res

judicata in a regular suit filed before competent court. Even

otherwise also, while dismissing the appeal vide order dated

16.2.2002, the BoR has recorded the following finding:

"If he (the appellant herein) 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."

Obviously, the BoR, conscious of the well settled principle of

law that mutation proceedings do not determine substantive rights

of the parties in the land in question, made the aforesaid

observation.

In these circumstances, the appellant was well within his

right to assert his right on the basis of a Will which he claimed to

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have been executed by late Ghasi in his favour, through a regular

suit in the competent court of law without the observation of the

BoR made in the appeal arising out of mutation proceeding,

coming in his way. Therefore, in the considered opinion of this

Court, the learned Single Judge erred in setting aside the