Lrs Of Madanlal vs State Of Rajasthan ...
2023 Latest Caselaw 3614 Raj

[2023/RJJD/012036]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 4047/2023

LRs Of Madanlal, S/o Late Sh. Ramdayal 1/1 Rajendra S/o Late Sh. Madanlal, Aged About 46 Years, Resident Of Village Naradhana, Tehsil Jayal, District Nagaur (Raj.).

1/2 Suresh S/o Late Sh. Madanlal, Aged About 43 Years, Resident Of Village Naradhana, Tehsil Jayal, District Nagaur (Raj.).

----Petitioners Versus

1. State Of Rajasthan, Through The Tehsildar, Jayal, District Nagaur (Raj.).

2. Kamal Kishore S/o Late Sh. Sadasukh Adopted Son Of Sh.

Chandra Lal, Resident Of Village Naradhana, Tehsil Jayal, District Nagaur (Raj.) Currently Residing In Jalana (Maharashtra).

3. ICICI Bank, Erstwhile The Bank Of Rajasthan Limited, Branch Rol, Jayal, District Nagaur (Raj.).

                                                    ----Respondents



For Petitioner(s)         :     Mr. Muktesh Maheshwari
                                Mr. Nishit Shah
For Respondent(s)         :     Dr. Harish Kumar Purohit



      HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

                                     Order

26/04/2023

1. This writ petition has been preferred claiming the

following reliefs:

"It is, therefore, most respectfully prayed on behalf of the Petitioners that this Writ Petition may kindly be allowed and:

I. By an appropriate writ, order or direction, the Impugned Judgment dated 01.11.2022 (Annex.18) passed by the Learned Board of Revenue in Appeal No.1866/2011 be quashed and set aside; AND

II. By an appropriate writ, order or direction, the Impugned Judgment and Decree dated 11.03.2011 (Annex.12) passed by the Learned Revenue Appellate Authority in Appeal No.1/2010 be quashed and set aside;

[2023/RJJD/012036] (2 of 11) [CW-4047/2023]

III. By an appropriate writ, order or direction, the Appeal (Annex.6) preferred by the Respondent No.2 be dismissed in toto and the judgment and decree dated 25.04.2005 (Annex.5) be upheld;

IV. Any other appropriate order or direction, which this Hon'ble Court considers just and proper in the facts and circumstances of this case, may kindly be passed in favour of the Petitioner."

2. In bare essentials, the facts giving rise to this appeal

are that original plaintiff-Madan Lal (since deceased, represented

through his legal representatives (sons) in the present petition)

claiming himself to be the sole khatedar (upon demise of all the

other khatedars) and being in cultivatory possession, for a long

period, of certain agricultural lands situated in Village Naradhana

Tehsil Jayal, District Nagaur, had instituted a suit for declaration of

khatedari rights and the rectification/correction in the revenue

records.

2.1 The said suit was instituted before the Assistant

Collector (S.D.O.), Jayal ('trial court'), while impleading the State

of Rajasthan, through the Tehsildar, Jayal, District Nagaur as the

sole defendant. The said revenue authority, vide its judgment and

decree dated 25.04.2005, decreed the suit ex parte in favour of

the original plaintiff; as recorded in the said judgment and decree,

despite issuance of summons, no one has put in appearance to

contest the said suit on behalf the defendant, and therefore, the

suit was proceeded ex parte, culminating into passing of the said

judgment and decree.

2.2 The aforesaid judgment and decree was challenged by

present respondent No.2 Kamal Kishore S/o Late Sh. Sada Sukh

by preferring an appeal before the learned Revenue Appellate

[2023/RJJD/012036] (3 of 11) [CW-4047/2023]

Authority, Nagaur. In the said appeal, it was alleged that the

aforementioned suit, as instituted, ought not have been

entertained by the learned trial court, as while filing the said suit,

the original plaintiff, despite knowing the fact that Late Smt. Gulab

Devi (wife of the original plaintiff's elder brother Late Sh.

Sadasukh) - one of the khatedars, was survived by a son (Kamal

Kishore) and two daughters (Smt. Radha Devi & Smt. Sarla Devi),

did not array any of them as the party defendant(s) in the suit.

2.3 The learned Revenue Appellate Authority vide the

impugned judgment dated 11.03.2011, while deciding the appeal,

has quashed and set aside the judgment and decree dated

25.04.2005 passed by the learned trial court, while observing that

the said suit was void ab initio.

2.4 Alongwith the appeal, an application under Order 41

Rule 27 of the Code of Civil Procedure (CPC) for taking certain

documents on record, was also preferred by the respondent No.2

herein, followed by an application preferred under the same

provision of law on behalf of the original plaintiff and his son,

before the said revenue authority. Both the said applications,

preferred by the parties, as recorded in the impugned judgment

dated 11.03.2011, were allowed, and the documents, as

mentioned in the said applications, being relevant for the purpose

of adjudication, were taken on record.

2.5 Against the aforesaid impugned judgment dated

11.03.2011, the original plaintiff-Late Madan Lal and his son

Suresh (one of the petitioners herein) preferred an appeal before

the learned Board of Revenue for Rajasthan, Ajmer, alleging

[2023/RJJD/012036] (4 of 11) [CW-4047/2023]

therein, amongst others, that despite the observation made by the

learned Revenue Appellate Authority that the delay in filing the

appeal before it did not deserve condonation, the said revenue

authority, vide the impugned judgment dated 11.03.2011, has

quashed and set aside the judgment and decree dated 25.04.2005

passed by the learned trial court.

2.6 The learned Board of Revenue, vide the impugned

judgment dated 01.11.2022, dismissed the appeal preferred by

the original plaintiff and his son, while upholding the aforesaid

impugned judgment passed by the learned Revenue Appellate

Authority.

2.7 Thus, being aggrieved by the impugned judgments

passed by the learned Revenue Appellate Authority and the

learned Board of Revenue, the petitioners-Rajendra and Suresh

(sons of the original plaintiff-Late Madan Lal) have approached

this Hon'ble Court by preferring this petition, claiming the

aforequoted reliefs.

3. Learned counsel for the petitioners, at the outset,

raised an issue that since the respondent No.2 herein had filed the

appeal before the learned Revenue Appellate Authority with an

inordinate and unexplained delay of five years and without seeking

leave of the said revenue authority, therefore, the learned

Revenue Appellate Authority was not justified in law, in hearing

and deciding the appeal on merits.

3.1 He further submitted that though the learned Revenue

Appellate Authority, as recorded in the impugned judgment, was

[2023/RJJD/012036] (5 of 11) [CW-4047/2023]

satisfied that the appeal before it was barred by limitation, and

thus, in the given factual matrix, such an inordinate delay did not

deserve condonation, but at the same time, the said revenue

authority heard the arguments of the parties on merits and

allowed the appeal of the respondent No.2 vide the impugned

judgment dated 11.03.2011. Hence, as per learned counsel, on

that count alone the impugned judgment dated 11.03.2011 is not

sustainable in the eye of law, and as a consequence thereof, the

impugned judgment 01.11.2022 passed by the learned Board of

Revenue, whereby the determination made by the learned

Revenue Appellate Authority was upheld, also deserves to be

quashed and set aside.

4. Learned counsel for the petitioners tried to thwart the

claim of the respondent No.2-Kamal Kishore, by submitting that

though he was the son of elder brother (Sh. Sada Sukh) of the

petitioners' father (Late Sh.Madan Lal/original plaintiff), but when

the respondent No.2 was aged only four months, he was given

under adoption to one Chandu Lal, and therefore, as per the law

governing the field, by virtue of the adoption, the respondent No.2

deemed to have given up all his rights in respect of the property

of his Late father; as regards, the two daughters of Late Sh. Sada

Sukh, it was submitted that after their marriage, the daughters

have relinquished all their rights in the property of their father.

4.1 Learned counsel also submitted that in the said

backdrop, after the death of the petitioner's elder brother (Sh.

Sada Sukh), Smt. Gulab Devi (since deceased) became the sole

heir of her husband (Late Sh. Sada Sukh); meaning thereby, Late

[2023/RJJD/012036] (6 of 11) [CW-4047/2023]

Smt. Gulab Devi and Late Madan Lal (original plaintiff and father

of the petitioners herein) became the joint khatedars of the lands

in question.

4.2 Learned counsel further submitted that as the factual

matrix and the record of the case would unveil, after the demise

of Late Smt. Gulab Devi, the petitioners' father Late Sh. Madan Lal

was the only khatedar left, in respect of the lands in question.

4.3 Learned counsel thus submitted that neither the

respondent No.2 nor anyone else was the necessary party to the

aforementioned suit filed by the original plaintiff and his son, and

therefore, the State of Rajasthan, through the Tehsildar, was

arrayed as the sole defendant in the suit. Hence, as per learned

counsel, once non-impleadment of the respondent No.2 in the suit

was made, as per law, then in absence of such impleadment, the

respondent No.2 had no locus standi to prefer an appeal against

the judgment and decree passed by the learned trial court in

favour of the original plaintiff and his son (petitioner-Suresh).

4.4 Learned counsel also submitted that that the

respondent No.2 had approached the learned Revenue Appellate

Authority with unclean hands, while concealing certain material

facts, as on one hand, he concealed the factum of execution of the

alleged Will dated 03.10.2001 in his favour by Late Smt. Gulab

Devi and also the amendments made in the mutation records

based on the said Will; while on the other, at a later stage of the

appeal, the respondent No.2 came with a case that by virtue of

the alleged Will and being the only son of Late Smt. Gulab Devi,

he had become the owner of the property of the said Late Smt.

[2023/RJJD/012036] (7 of 11) [CW-4047/2023]

Gulab Devi; in view of the recorded fact that long back, the

respondent No.2, was given under adoption to one Chandu Lal,

the respondent No.2 cannot claim himself to be the heir/son of

Late Smt. Gulab Devi.

5. On the other hand, learned counsel for the

respondents, opposed the aforesaid submissions made on behalf

of the petitioners.

5.1 As against the argument advanced on behalf of the

petitioners regarding concealment of material facts on the part of

the respondent No.2, learned counsel submitted that the

respondent No.2 had not made any such concealment; rather the

original plaintiff and his son petitioner-Suresh, despite knowing

each and every fact relevant to the case, made a concealment of

the material fact that earlier Late Smt. Gulab Devi had filed a

revenue suit for partition in respect of the lands in question,

wherein the original plaintiff-Late Sh.Madan Lal was arrayed as

defendant.

5.1.1 As per learned counsel, both the parties in the said suit

i.e. Late Smt. Gulab Devi and Late Shri Madan Lal (father of the

petitioners) have entered into a compromise pertaining to the

partition of the lands in question, and on the basis thereof, a

compromise decree was passed by the concerned court on

27.12.1985 followed by necessary entries in the revenue records;

as revealed from the record, the original plaintiff and his son,

before the learned trial court, have intentionally and deliberately,

with a view to grab the whole property in question, concealed the

factum of passing of the said compromise decree; such

[2023/RJJD/012036] (8 of 11) [CW-4047/2023]

concealment on the part of the original plaintiff and his son has

also been recorded in the impugned judgments passed by the

learned revenue authorities below.

5.2 Furthermore, as per learned counsel, the original

plaintiff and the petitioners, at all times, were aware of execution

of the registered Will dated 03.10.2001 as well as nomination

No.515 in favour of the respondent No.2; copies whereof were

placed on record by the respondent No.2 before the learned

Revenue Appellate Authority; despite knowing such fact, the

original plaintiff alongwith his son (petitioner-Suresh) have not

impleaded the respondent No.2 as party-defendant in the suit for

declaration instituted by them before the learned trial court.

5.3 Thus, as per learned counsel, the learned trial court

had passed the ex parte judgment and decree in favour of the

original plaintiff and his son (petitioner-Suresh herein), without

making due enquiry and verification about the surviving legal

heir(s) of Late Smt. Gulab Devi. Hence, learned counsel submitted

that the suit decreed in favour of the original plaintiff and his son,

as recorded in the impugned judgment passed by the learned

revenue authority below, was void ab initio.

5.4 Learned counsel further submitted that the manner in

which litigation (suit for declaration and entry in the revenue

records), as launched by the original plaintiff and his son would

reveal, the same was instituted with an ill intention to grab the

whole property in question, including the ones belonging, by virtue

of the aforementioned registered Will, to the respondent No.2.

Thus, as per learned counsel, though initially the original plaintiff

[2023/RJJD/012036] (9 of 11) [CW-4047/2023]

and his son were successful in getting the desired relief from the

learned trial court, but the same was set at naught by the learned

Revenue Appellate Authority, vide the impugned judgment dated

11.03.2011, followed by affirmation thereof by the learned Board

of Revenue vide the impugned judgment dated 01.11.2022, and

rightly so.

5.5 Learned counsel thus, submitted that the learned

revenue authorities below have passed the impugned judgments,

after taking into due consideration the overall facts and

circumstances of the case and after duly appreciating and

analyzing the evidence placed on record before them.

6. Heard learned counsel for the parties as well as

perused the record of the case.

7. This Court observes that vide the impugned judgment

dated 11.03.2011, the learned Revenue Appellate Authority had

declined to condone the delay in filing the appeal before it by the

respondent No.2; however, since as a consequence of the

apparent irregularities unveiled from the record, the suit filed by

the original plaintiff and his son (petitioner-Suresh) was declared

as void ab initio, therefore, the said revenue authority below

passed the impugned judgment in favour of the respondent No.2.

Thus, the issue of limitation, as raised on behalf of the petitioners,

does not hold good.

8. This Court further observes, as recorded in the

impugned judgments, that the factum of passing of the

aforementioned compromise decree in the year 1985, was

[2023/RJJD/012036] (10 of 11) [CW-4047/2023]

deliberately concealed by the original plaintiff and his son, while

filing the suit for declaration of khatedari right, before the learned

trial court.

8.1 This Court also observes that the learned revenue

authorities below in the impugned judgments have rightly

observed that on count of non-impleadment of the heir(s) of Late

Smt. Gulab Devi in the suit filed by the original plaintiff and his

son before the learned trial court, the same was void ab initio, as

the heir(s) of Late Smt. Gulab Devi, vide the ex parte decree,

were deprived of their right of hearing, before passing of the

judgment and decree, and the same, thus violated, amongst

others, the principles of natural justice, as on count of such non-

impleadment, the respondent No.2 could not be served with any

notice of the suit instituted by the original plaintiff and his son.

9. Apart from what has been observed above, this Court is

of the firm opinion that once the original plaintiff and Late Smt.

Gulab Devi have entered into a compromise in relation to the

revenue suit for partition instituted by Late Smt. Gulab Devi and

on the basis thereof, the concerned revenue authority had passed

the compromise decree dated 27.12.1985, in respect of the lands

in question, then no cause of action or occasion can be said to

have arisen to the original plaintiff and his son for instituting the

subsequent suit, that too, without making any disclosure of such

compromise decree and without impleading any of the heirs of

Late Smt. Gulab Devi as party-defendant in the said suit.

9.1 This Court is thus of the opinion that once the rights of

the parties, in respect of the subject lands in question, have been

[2023/RJJD/012036] (11 of 11) [CW-4047/2023]

determined vide the compromise decree passed in the year 1985,

followed by the consequential entries in the revenue records, then

the subsequent suit, as filed by the original plaintiff and his son

before the learned trial court, was void ab initio, as already

observed by the learned revenue authorities below, in the

impugned judgments.

10. In light of the aforesaid observations, this Court does

not find any legal infirmity in the well reasoned speaking

judgments impugned herein, passed by the learned revenue

authorities below, so as to warrant any interference therein.

11. Consequently, the present petition is dismissed. All

pending applications stand disposed of.

(DR.PUSHPENDRA SINGH BHATI), J.

70-SKant/-

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