Lrs Of Raju vs Board Of Revenue Through ...
2022 Latest Caselaw 14245 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 16798/2017

1. Lrs Of Raju S/o Badra 1/1 Smt. Suji w/o Raju, aged 72 years 1/2 Bhimsingh s/o Raju, aged 32 years 1/3 Arjun Singh s/o Raju, aged 48 years 1/4 Narpat Singh s/o Raju, aged 40 years All are by caste Rajpurohit r/o Jasol Tehsil Pachpadra Dist. Barmer

----Petitioners Versus

1. Board Of Revenue Through Registrar, Ajmer.

2. Revenue Appellate Authority, Barmer.

3. Sub Divisional Officer, Balotra, District Barmer.

4. Tehsildar, Pachpadra, District Barmer.

5. Vijay Singh S/o Mangla, By Caste Rajpurohit, R/o Jasol, Tehsil, Panchpadra District Barmer.

6. Omsingh S/o Mangla, By Caste Rajpurohit, R/o Jasol, Tehsil Panchpadra, District Barmer.

7. Chanan Singh S/o Raju, By Caste Rajpurohit, R/o Jasol Tehsil Pachpadra Distict Barmer.

8. Mohani D/o Raju, By Caste Rajpurohit, R/o Jasol, Tehsil, Pachpadra District Barmer.

9. Pani D/o Raju W/o Pokhar Singh, By Caste Rajpurohit, R/ o Sarana Tehsil Panchpadra District Barmer.

10. Agari D/o Raju W/o Bhikhsingh, By Caste Rajpurohit, R/o Sarana Tehsil Pachpadra District Barmer.

11. Manju D/o Raju W/o Ram, By Caste Rajpurohit, R/o Indrana Tehsil Siwana District Barmer.

                                                                ----Respondents


For Petitioner(s)        :     Mr. Virendra Lodha, Sr. Adv. assisted
                               by Mr. Kapil Sharma
For Respondent(s)        :     Mr. S.M. Parihar
                               Mr. Ram Dayal Choudhary, Dy. G.C.
                               Mr. Govind Lal




                                          (2 of 9)                  [CW-16798/2017]


           HON'BLE MR. JUSTICE KULDEEP MATHUR

                                     Order

05/12/2022

Briefly stated facts of the case are that Raju, son of Badra Ji

(predecessor of the petitioners), filed a suit under Section 88 and

188 of Rajasthan Tenancy Act, 1955 (hereinafter referred to as

'Act of 1955') before the court of Assistant Collector (SDO),

Balotra seeking injunction and declaration of tenancy (khatedari)

rights stating that his elder brother, Late Shri Mangla,

(predecessor of the private respondents) was having ancestral

agriculture land, bearing Khasra No.407 Rakba, ad-measuring 27

bighas and 5 biswas, situated at Village Jasol, District-Barmer. It

was further stated that in the revenue records at the time of

settlement, though entry in name of Late Shri Mangla was made

but both brothers were having 1/2 share each in the suit property.

It was thus prayed that declaration for necessary corrections be

made in revenue record to the effect that Raju is having 1/2 share

in the suit property.

In the written statement submitted on behalf of private

respondents, it was stated that the suit property was self acquired

property of Late Shri Mangla and pursuant thereto, revenue

entries were made in his name. It was further stated that the land

was in exclusive possession of Late Shri Mangla from the very

beginning which is being cultivated and possessed by his legal

heirs.

The court of Assistant Collector (SDO), Balotra on the basis

of the pleadings framed necessary issues and after analysing

evidence led by the parties, vide judgment and decree dated

(3 of 9) [CW-16798/2017]

30.04.2003 rejected the suit holding that the applicant-Raju has

failed to prove that the suit property was inherited by Late Shri

Mangla and therefore, he had 1/2 share in the property.

Aggrieved by the judgment and decree dated 30.04.2003,

first appeal under Section 223 of the Act of 1955 was preferred by

the petitioners before the Revenue Appellate Authority, Barmer

(for short, 'RAA, Barmer'). During the pendency of first appeal

before RAA, Barmer, an application under Order 41 Rule 27 read

with Section 151 C.P.C. was submitted by the appellant-Raju with

a prayer for taking additional document on record: Ikrarnama

dated 19.05.1985/19.06.1985, executed by Late Shri Mangla,

stating that the suit property is in joint possession of both the

brothers which is being cultivated by them. It was further stated

that due to bona fide error at the time of settlement, the entire

land had been recorded in the name of Mangla however, since

Raju is having 1/2 share in the property, he will be entitled to

claim the same and his successors will not raise any objection, if

such a demand is made. The RAA, Barmer taking into

consideration the additional documentary evidence produced

before it allowed the first appeal vide judgment and decree dated

21.01.2004, declaring appellant-Raju a tenant (Khatedar), having

equal share in the suit property. It was further ordered that

necessary entries in this regard may be made in revenue record.

The successors of Late Shri Mangla challenged judgment and

decree dated 21.01.2004 passed by the RAA, Barmer by way of

filing second appeal under Section 224 of the Act of 1955 before

the Board of Revenue Rajasthan, Ajmer. In the second appeal filed

before the Board of Revenue, the appellants contended that the so

(4 of 9) [CW-16798/2017]

called Ikrarnama was never executed by Late Shri Mangla. The

aforesaid document is a forged and a manufactured one. It was

further contended that the Ikrarnama was neither exhibited nor

proved by way of evidence before the RAA, Barmer whilst only

photocopy of the same was filed, which is not even admissible in

evidence. Lastly, it was urged that the document is unstamped

and was compulsorily registrable document as per the provisions

stipulated in Section 17 of the Registration Act, 1908 (hereinafter

referred to as 'Act of 1908').

The Board of Revenue vide its judgment and decree dated

06.12.2017 allowed the second appeal and held that unstamped

Ikrarnama dated 19.05.1985/19.06.1985 is compulsorily

registrable and in the absence thereof, such document is

inadmissible in evidence. The above judgment and decree dated

06.12.2017 passed by Board of Revenue, Ajmer wherein and

whereby the judgment and decree dated 21.01.2004 passed by

first appellate Court had been set aside while judgment and

decree dated 30.04.2003 passed by Assistant Collector (SDO),

Balotra had been restored, is assailed in this writ petition.

Learned counsel for the petitioners vehemently submitted

that the second appellate Court committed an illegality in treating

the Ikrarnama dated 19.05.1985/19.06.1985 as an agreement.

Learned counsel submitted that the Ikrarnama dated

19.05.1985/19.06.1985 is neither a sale agreement nor a

conveyance deed. It is merely an acknowledgment by Late Shri

Mangla that his brother Raju is co-tenant, having 1/2 share in the

suit property. Learned counsel submitted that the Ikrarnama

dated 19.05.1985/19.06.1985 is not a compulsorily registrable

(5 of 9) [CW-16798/2017]

document because through the said document, neither property

has been transferred nor possession has been delivered to party

of the document. Learned counsel further submitted that the suit

property was entered in the name of Late Shri Mangla in the

revenue records at the time of settlement due to an error which

has been admitted by him in the Ikrarnama dated

19.05.1985/19.06.1985, therefore, his legal heirs are precluded

from denying the rights of Raju and his legal heirs. Lastly, it was

submitted that the Rajasthan Stamp Act has come into force only

in the year 1988, therefore, a document executed in the year

1985 would not be governed by the provisions of the said Act. On

the strength of these submission, learned counsel implored the

Court to accept the writ petition and set aside the impugned

judgment and decree dated 06.12.2017 passed by the Board of

Revenue Rajasthan, Ajmer. Reliance was placed on Korukonda

Chalapathi Rao & Anr. vs. Korukonda Annapurna Sampath

Kumar reported in (2021) 11 JT 260.

Per contra, learned counsel for the respondents submitted

that Late Shri Mangla was the sole tenant of the suit property

which was in exclusive possession of Late Shri Mangla and his

legal heirs. The Ikrarnama dated 19.05.1985/19.06.1985 is a

forged and manufactured document which was produced for the

first time in the first appeal before the RAA, Barmer, without any

explanation for not filing the same at the initial stage. Learned

counsel submitted that since the aforesaid document was neither

exhibited nor proved by evidence, they did not get any

opportunity to rebut the same. Lastly, it was submitted that the

Ikrarnama was an unregistered and an unstamped document,

(6 of 9) [CW-16798/2017]

which was not admissible in the evidence. It was thus prayed that

the writ petition deserves to be dismissed and judgment and

decree dated 06.02.2017 passed by the Board of Revenue

Rajasthan, Ajmer may be upheld.

Heard learned counsel for the parties and perused the

material available on record.

As per Section 140 of Rajasthan Land Revenue Act, 1956, 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 petitioners

that the entries of revenue records in the name of Late Shri

Mangla were made fraudulently or surreptitiously.

In the case of Yellapu Uma Maheshwari & Anr. vs.

Buddha Jagadheeswara Rao & Ors. reported in (2015) 16

SCC 787, Hon'ble the Apex Court, held as under:-

"It is well settled that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents and that the admissibility of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the document in question."

The Ikrarnama dated 19.05.1985/19.06.1985, said to have

been executed by Late Shri Mangla reads as follows:

""bdjkjukek eSa eaxyk oYn cknjth mez 60 o"kZ tkfr iqjksfgr lk- tlksy is'kk [ksrh bdjkj ukek esjs HkkbZ jktw oYn cknjth tkfr iqjksfgr lk- tlksy ds gd esa fy[k nsrk gw¡ fd xzke tlksy rglhy ipinjk esa [ksr [kljk uEcj 407 ¼pkj lkS lkr½ jdck 261 lrkbZl ch?kk ikap fcLok tks fd jktLo vfHkys[k esa esjs vdsys ds uke vk;k gqvk gSA ftldk yxku ge nksuksa HkkbZ vkt rd lkFk esa vnk djrs gSA ?kj esa cM+k gksus ls ;g [ksr esjs vdsys ds uke gks x;k gsA tcfd bl [ksr esa esjs HkkbZ jktw dk vk/kk cUV gksuk pkfg;s FkkA bl [ksr dks ge nksuksa HkkbZ vk/kk vk/kk vius cUV vuqlkj dkLr djrs gSA vr% vk/ks [ksr ij esjk dCtk o vk/ks cUV ij esjs HkkbZ jktw

(7 of 9) [CW-16798/2017]

dk dCtk gSA bl [ksr [k- ua- 407 jdck 261 ds vk/k ds ekfyd vki jktw oYn cknjth rFkk vk/k dk ekfyd eSa Lo;a ¼eaxyk s/o cknjth½ gw¡A bl [ksr ds lEcU/k esa vki vk/k dh ekax djksxs rks eSa dksbZ mtj o ,rjkt ugha d:axkA ;fn bl [ksr ds vk/kk cUV gsrq vki jtw s/o cknjth jktLo okn djksxs rks eSa vkids gd c;ku d:axk vkSj vkids gd eSa lcwr is'k d:axkA bl [ksr ds vk/kk cUV ij ftl ij fd vki dk dCtk gS ml lEcU/k esa eSa o esjh vky vkSykn dksbZ fdLe dk mtj o ,rjkt ugha djsaxsA yksd vnkyr esa ekeyk is'k gksus ij eSa vkids gd esa c;ku d:axkA ;g [ksr vk/kk vkids uke djokus gsrq [kpkZ vkidk Lo;a dk yxsxkA ;g bdjkj ukek eSaus lksp le> dj jkth [kq'kh vdy gqf'k;kjh fcuk u'kk irk fd;s fcuk fdlh ncko ds eSaus esjs lxs HkkbZ jktw s/o cknjth ds gd esa fy[k fn;k tks lgh gSA bZ'oj esjh enn djsaA oDr t:jr dke vkos rFkk lun jgsA bfr-

¼1½ lk[k ,d esa ujlhax s/o ykyth tkrh jktiqjksfgr csjk tksaxjk eu.kkokl rsg- ipinjk ftyk ckM+esj us eaxyk s/o cknjkth ds dgus ls vkt rk- [email protected]@85 dks buds ?kj esa

¼2½ lk[k ,d nqxZflaag s/o tkerkth tkrh jktiqjksfgr fuoklh bUnzk.kk rsg- flok.kk ftyk ckM+esj okyks us eaxyk s/o cknjkth ds dgus ls vkt [email protected]@85 buds ?kj tlksy esa"

From the record of the case, it is clear that the Ikrarnama

dated 19.05.1985/19.06.1985, claimed to have been executed by

Late Shri Mangla relinquishing his rights in the suit property is

disputed by his legal heirs. A photocopy of the said document was

produced for the very first time in first appeal before the Revenue

Appellate Authority, Barmer along with an application under Order

41 Rule 27 read with Section 151 C.P.C. The language/recitals

contained in the Ikrarnama dated 19.05.1985/19.06.1985 clearly

shows that it is not merely an acknowledgment or statement of

facts. From the perusal of document, it reveals that through this

document, rights have been relinquished in favour of Raju and his

legal heirs, having an effect of Late Shri Mangla divesting his

share in the suit property.

In Korukonda Chalapathi Rao & Anr. vs. Korukonda

Annapurna Sampath Kumar reported in (2021) 11 JT 260,

Hon'ble the Apex Court while considering an instrument of

partition (Khararunama) wherein the words used, intended to

(8 of 9) [CW-16798/2017]

refer to the arrangements made between the parties and the

document did not by itself purport to create, declare, assign,

extinguish, limit right in the joint family properties, held that the

document was not required to be registered and stamped. As

noticed herein above, in the present case the genuineness of

Ikrarnama has not only been disputed but the same by itself has

an effect on the rights in the immovable property by way of

creation, declaration, assignment, limiting or extinguishment,

thereby making it a compulsorily registrable document by virtue of

Section 17 of the Act of 1908.

Section 17 of The Registration Act, 1908 clearly provides

that if any right in a property valued more than ₹100 is to be

created, declared, assigned, relinquished or extinguished, whether

in present or in future is required to be compulsorily registered

before the registering authority under the Act. Section 49 of the

Act of 1908 in unambiguous terms states that no document

required to be registered under Section 17 shall be received as

evidence of any transaction affecting such property or conferring

such power, unless the same is registered. In view of language of

Section 17 and 49 of the Act of 1908 and in the considered

opinion of this Court, the Ikrarnama dated

19.05.1985/19.06.1985 is a compulsorily registrable document

and if the same is not registered, becomes an inadmissible

document.

The argument advanced by learned counsel for the

petitioners that Rajasthan Stamp Act, 1998 does not apply in the

present case to the Ikrarnama which was executed in the year

1985 is to no avail as the Indian Stamp Act, 1899 had been

(9 of 9) [CW-16798/2017]

adapted in Rajasthan under the Rajasthan Stamp Law

(Adaptation) Act, 1952 which was prevalent during the said

period.

In view of aforesaid discussion, the findings of fact, so

recorded by the Board of Revenue Rajasthan, Ajmer vide

judgment dated 06.12.2017 whereby judgment dated 30.04.2003

passed by the court of Assistant Collector (SDO), Balotra was

restored does not suffer from any, illegality, perversity and

infirmity warranting interference in this writ petition, which fails

and is dismissed as such.

No order as to costs.

KULDEEP MATHUR),J skm

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