Mangal Das And Ors vs B.O.R.And Ors
2022 Latest Caselaw 14092 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR


                 D.B. Spl. Appl. Writ No. 676/2001

1. LR's of Mangal Das
   1/1 Smt. Bhanwari Bai W/o late Shri Managal Das
   1/3 Bindu D/o late Shri Managal Das
   1/4 Harish Kumar S/o late Shri Managal Das
   1/5 Govind S/o late Shri Managal Das
   1/6 Deepak S/o late Shri Managal Das


Appellant No.1/4 to1/6 are minors through legal guardian their
mother Smt. Bhanwari Bai W/o late Shri Managal Das.


All by caste Vaishnav, Resident of Village Kishanpura, Tehsil
Desuri, District Pali (Raj.).


2. Shankar Das S/o late Shri Ghessu Das
3. Prabhu Das S/o late Shri Ghessu Das
4. Babu Das S/o late Shri Ghessu Das
5. Kan Das S/o late Shri Ghessu Das
6. Shyam Das S/o late Shri Ghessu Das
7. Madan S/o late Shri Ghessu Das
9. Smt. Bhanwari D/o Shri Ghessu Das
10. Sumitra D/o Shri Ghessu Das


All by caste Vaishnav, Resident of Village Kishanpura, Tehsil
Desuri, District Pali (Raj.).




                                                                ----Appellants-
                                   Versus


1. The Board of Revenue for Rajasthan at Ajmer.
2. The Revenue Appellate Authority, (II- Jodhpur), now at Pali.
3. The Assistant Collector, Tehsil Desuri, District Pali.
4. Mangi Das S/o Shri Birad Das.


                    (Downloaded on 01/12/2022 at 11:50:05 PM)
                                          (2 of 8)                  [SAW-676/2001]


5. LR of Shri Sesu Das S/o Shri Ganesh Das
   5/1 LR's of Hira Das S/o Shri Sesu Das
   (a) Smt. Bhanwari Widow Shri Hira Das
   (b) Kumari Poonam D/o Shri Hira Das
   (c) Kumari Rekha D/o Shri Hira Das
  (d) Shri Deepak S/o Shri Hira Das
  (e) Shri Prakash S/o Shri Hira Das


All by caste Vaishnav, Resident of Kishanpura, Tehsil Desuri,
District Pali.
   (5/2) Chhagan Das S/o Shri Sesu Das
   (5/3) Vijau Das S/o Shri Sesu Das
   (5/4) Hari Krishan S/o Shri Sesu Das


   All by caste Vaishnav, Resident of Kishanpura, Tehsil Desuri,
District Pali.


6. Roop Das S/o Shri Ganesh Das
7. Bhola Das S/o Shri Ganesh Das
8. Amri Das S/o Shri Gulab Das
9. Hand Das S/o Shri Gulab Das
10. Ratan Das S/o Shri Gulab Das
11. Dakhu Bai Widow of Shri Gulab Das
12. Champa, Daughter of Shri Gulab Das
13. Smt. Jatno Wife of Shri Hira Das
14. Smt. Sukhli Wife of Mangal Das and D/o Ganesh Das
15. Dhan Das S/o Shri Ganesh Das
All by caste Vaishnav Residents of Village Kishanpura, Tehsil
Desuri, District Pali.
16. Tehsildar, Desuri
                                                                ----Respondents



For Appellant(s)         :     Mr. Jitendra Chopra
For Respondent(s)        :     -




                    (Downloaded on 01/12/2022 at 11:50:05 PM)
                                            (3 of 8)                [SAW-676/2001]


           HON'BLE MR. JUSTICE SANDEEP MEHTA
           HON'BLE MR. JUSTICE KULDEEP MATHUR

                               JUDGMENT

PRONOUNCED ON                          :                        01/12/2022

RESERVED ON                            :                        13/10/2022


BY THE COURT: (PER HON'BLE MATHUR, J.)

The present special appeal is directed against order dated

06.07.2001 passed by learned Single Bench in S.B. Civil Writ

Petition No.2286/2001 (Mangal Das & Ors. Vs. Board of Revenue

& Ors.), whereby the writ petition filed under Articles 226 and 227

of the Constitution by the appellants with the prayer to set aside

the judgment of Revenue Appellate Authority-II, Jodhpur as

affirmed by Board of Revenue, Ajmer, vide judgment dated

18.01.2001, by restoring judgment dated 25.11.1991, passed by

Assistant Collector, Desuri declaring the property in dispute to be a

Joint Hindu family ancestral property, was dismissed.

Briefly stated facts of the case are that the appellants filed a

suit under Sections 53, 88, 188 of Rajasthan Tenancy Act before

Assistant Collector, Desuri stating inter alia, that Khasra No.97 ad-

measuring 19 bighas and 16 biswas, Khasra No.98 ad-measuring

5 bighas 1 biswa and Khasra No.171 ad-measuring 14 bighas and

4 biswas, measuring a total of 39 bighas and 1 biswa, situated at

Chak No.1, village Nadol, belongs to the Joint Family of Late Shri

Birad Das and his three sons namely, Ganesh Das, Gheesu Das,

and Mangi Das. In the suit, it was further stated that the land in

dispute had been wrongly recorded in the revenue records in the

name of Ganesh Das, though it was a Joint Hindu Family property

(4 of 8) [SAW-676/2001]

in which all three brothers were having 1/3rd shares. It was thus

prayed that declaration for necessary corrections be made in

revenue record to the effect that all the legal heirs of late Shri

Birad Das are Khatedars of the disputed land.

In the reply, it was pleaded that Ganesh Das was the sole

khatedar of the land in dispute and therefore in the revenue

records, the land had been rightly recorded in his name. It was

further stated that Shri Ganesh Das lived separately from his

father late Shri Birad Das and the land in dispute was acquired by

him in personal capacity through his own resources.

In the rejoinder, it was stated on behalf of the appellants-

plaintiffs that Ganesh Das, being the eldest son of late Shri Birad

Das was the Karta of the family and in that capacity only, the land

was recorded in his name. Further, it was stated that 'Bigori' (Rent

of the disputed land) used to be deposited by Ganesh Das on

behalf of the joint Hindu Family and other brothers, namely

Gheesu Das and Mangi Das contributed and paid their shares of

the rent to Ganesh Das. To substantiate this, certain rent receipts

signed by Ganesh Das pertaining to Samwat years 2011-2013

were produced with the suit.

The learned Assistant Collector, Desuri vide judgment dated

25.11.1991 decreed the suit in favour of the appellant-plaintiffs

holding that the disputed land was a joint Hindu Family property.

The learned Assistant Collector, Desuri also held that Ganesh Das

used to recover rent from Gheesu Das (plaintiff), which clearly

shows that plaintiff had 1/3rd share in the disputed property and

contribution of 1/3 amount of 'Bigori' (Rent) was made towards

the same. Learned Assistant Collector, relying on the oral

(5 of 8) [SAW-676/2001]

testimonies of the witnesses concluded that appellant-plaintiffs

have 1/3rd share in the disputed land, entitling them to a

declaration of Khatedari right, as prayed for in the suit.

Aggrieved by the judgment dated 25.11.1991 of Assistant

Collector, Desuri the respondent-defendants challenged the same

before Revenue Appellate Authority II, Jodhpur. The Revenue

Appellate Authority, Jodhpur vide its judgment dated 24.08.1993

was pleased to accept the appeal filed under Section 223 of

Rajasthan Tenancy Act against the judgment and decree dated

25.11.1991 passed by the Assistant Collector, Desuri. The

Revenue Appellate Authority held that since the land in dispute

had been entered in the name of Ganesh Das in the revenue

records, the same cannot be declared as an ancestral property

only on the basis of oral evidence. A decree for declaration in

partition cannot be granted in favour of the respondents-plaintiffs.

Being dissatisfied with the judgment dated 24.08.1993, an

appeal was preferred by the appellant-plaintiffs before Board of

Revenue, Rajasthan, Ajmer which was rejected vide judgement

dated 18.01.2001 affirming the judgment dated 24.08.1993

passed by the Revenue Appellate Authority II, Jodhpur.

The appellant-plaintiff assailed the validity and legality of

judgment dated 24.08.1993 passed by Revenue Appellate

Authority II, Jodhpur and judgment dated 18.01.2001 passed by

the Board of Revenue, Ajmer before learned Single Bench of this

Court by way of filing writ petition under Articles 226 and 227 of

the Constitution of India. The learned Single Bench after

scrutinising the record, reached to the conclusion that the

evidence on record, particularly documentary evidence, does not

(6 of 8) [SAW-676/2001]

establish that the disputed land was ever recorded in the name of

ancestor of the parties but was only recorded in the name of

Ganesh Das. Learned Single Bench further observed that there

was no other evidence available to establish that the land was

ancestral property of the parties which was liable to be partitioned

amongst them. While reaching to this conclusion, learned Single

Bench upheld the findings recorded by Board of Revenue, Ajmer

and Revenue Appellate Authority-II, Jodhpur in their judgments

vide order dated 06.07.2001 and dismissed the writ petition.

Aggrieved by the order dated 06.07.2001, present special appeal

(writ) has been filed.

Learned counsel Mr. Jitendra Chopra, representing the

appellant, vehemently and fervently contended that learned Single

Bench and Revenue Authorities failed to consider that the

judgment dated 25.11.1991 passed by Assistant Collector, Desuri

is a well reasoned order, based on thorough appreciation of oral

and documentary evidence presented before it. Learned counsel

submitted that it was clearly established from record that Ganesh

Das recovered the share of the Bigori (rent) from his brother

Gheesu Das and these receipts were sufficient to establish that the

land in dispute was jointly owned by all three brothers and the

rent was also paid jointly. Learned counsel further submitted that

Gulab Das S/o Shri Ganesh Das filed an application for

compromise, duly verified by Assistant Collector, Desuri dated

19.08.1989 stating therein that the disputed land was the joint

family property of Ganesh Das, Gheesu Das and Mangi Das having

equal share and he had no objection, if a decree of partition was

passed. Lastly, it was submitted that disputed land was entered in

(7 of 8) [SAW-676/2001]

the name of Ganesh Das in the revenue records only because he

was elder brother and Karta of the joint Hindu Family. Learned

counsel urged that this intra court appeal may be accepted and

the judgment and decree dated 25.11.1991 passed by the

Assistant Collector, Desuri be restored.

Heard learned counsel for the appellants and perused the

material available on record.

Indubitably, as per the revenue record; Shri Ganesh Das was

the sole khatedar of the land in dispute, Section 140 of the

Rajasthan Land Revenue Act, 1956 in unambiguous terms

provided that all entries made in the record of rights shall be

presumed to be true until the contrary is proved. It is not the case

of the appellants that entries of revenue records in the name of

Shri Ganesh Das were made fraudulently or surreptitiously.

Certain receipts showing contribution of other two brothers

towards the rent of the land for Samvat years 2011-2013 are not

sufficient to conclude that the appellant-plaintiffs were entitled to

1/3rd share in the land or the nature of the property was

ancestral/joint Hindu Family property. The receipts only establish

by whom the rent was deposited and can by no stretch of

imagination be said to convey any status or ownership over the

property in dispute. The compromise dated 19.08.1989 between

Gulab Das S/o Ganesh Das and the appellants has no bearing on

the legal rights of the other respondent-defendants.

The burden of proving joint ownership over disputed

property was totally on the appellant-plaintiffs. Such burden

cannot be discharged only by way of oral evidence. It is settled

law that the witnesses may lie but the documents do not. The

(8 of 8) [SAW-676/2001]

presumption of truth attached to the revenue record could have

been rebutted only on the basis of evidence of impeccable

integrity and reliability. Oral evidence can always be adduced

contrary to the revenue record but such oral testimony will not be

sufficient to hold that the statutory presumption stands rebutted.

In view of the aforesaid discussion, the concurrent findings

of fact, so recorded by Revenue Appellate Authority-II, Jodhpur

and Board of Revenue, Ajmer vide judgments dated 24.08.1993

and 18.01.2001 respectively, as affirmed by learned Single Bench

vide order dated 06.07.2001, do not suffer from any infirmity,

perversity or illegality warranting interference in this intra court

appeal, which fails and is dismissed as such.

No order as to costs.

                                   (KULDEEP MATHUR),J                                     (SANDEEP MEHTA),J

                                    Ravi Kh.









Powered by TCPDF (www.tcpdf.org)