Devi Singh vs State Of Rajasthan
2023 Latest Caselaw 155 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 14004/2022

1. Devi Singh S/o Sohan Singh, Aged About 74 Years, 10 Green Park, College Road, Savitri Nagar, Indian Overseas Bank, 6-P-8, Vasai, Mumbai West, Presently Residing At 189, Rajpurohito Ka Bas, Indrawada, Pail, Rajasthan.

2. Narayan Singh S/o Sohan Singh, Aged About 70 Years, Opposite M/s Vitkrya Automobile Petrol Pump, Village Post Reodar, District Sirohi, Rajasthan.

3. Harish Chandra S/o Sohan Singh, Aged About 54 Years, 175, Rajpurohito Ka Bass, Indrawada, Somesar, Tehsil Desuri, District Pali, Rajasthan.

----Petitioners Versus

1. State Of Rajasthan, Through The Secretary, Revenue Department, Government Of Rajasthan, Jaipur, Rajasthan.

2. The Board Of Revenue, Ajmer, Rajasthan.

3. The Revenue Appellate Authority, District Pali, Rajasthan.

4. The Sub Divisional Officer, Desuri, District Pali, Rajasthan.

5. The Tehsildar Desuri, District Pali, Rajasthan.

6. Smt. Fuli D/o Pabudan, Indrabada, Tehsil Desuri, District Pali, Rajasthan.

7. LRs Of Smt. Ganga, D/o Late Pabudan 7/1 Shaitan Singh S/o Pur Singh, Indrabada, Tehsil Desuri, District Pali, Rajasthan.

7/2 Kamla D/o Pur Singh, Indrabada, Tehsil Desuri, District Pali, Rajasthan.

7/3 Hatu D/o Pur Singh, Indrabada, Tehsil Desuri, District Pali, Rajasthan.

8. LRs Of Shri Guman Singh, S/o Late Pabudan Singh 8/1 Dhagli Kanwar W/o Late Guman Singh, Indrabada, Tehsil Desuri, District Pali, Rajasthan.

8/2 Kamla Kanwar W/o Late Guman Singh, Indrabada, Tehsil Desuri, District Pali, Rajasthan.

8/3 Raju Singh S/o Late Guman Singh, Indrabada, Tehsil Desuri, District Pali, Rajasthan.

                                           (2 of 6)                  [CW-14004/2022]


8/4       Shyam Singh S/o Late Guman Singh, Indrabada, Tehsil
          Desuri, District Pali, Rajasthan.
8/5       Parbat Singh S/o Late Guman Singh, Indrabada, Tehsil
          Desuri, District Pali, Rajasthan.
8/6       Prem Singh S/o Late Guman Singh, Indrabada, Tehsil
          Desuri, District Pali, Rajasthan.
8/7       Jamna Kanwar D/o Late Guman Singh, Indrabada, Tehsil
          Desuri, District Pali, Rajasthan.
9.        LRs Of Shri Govardhan Singh:
9/1       Smt.   Samand        Kanwar       W/o      Late     Govardhan    Singh,

Indrabada, Tehsil Desuri, District Pali, Rajasthan. 9/2 Neela D/o Late Govardhan Singh, Indrabada, Tehsil Desuri, District Pali, Rajasthan.

9/3 Shaitan Singh S/o Late Govardhan Singh, Indrabada, Tehsil Desuri, District Pali, Rajasthan.

PROFORMA RESPONDENT:

10. Megh Singh S/o Sohan Singh, 138/1, Govind Dipa Vechile State, Singapur Market, Route No. 25, Madras (Chennai), Tamil Nadu.

----Respondents

For Petitioner(s) : Mr. Abhimanyu Singh Rathore.

For Respondent(s)          :



             HON'BLE MR. JUSTICE ARUN BHANSALI

                                      Order

05/01/2023

This writ petition has been filed by the petitioners aggrieved

by the judgment dated 11/4/2022 passed by the Board of

Revenue, whereby, the appeal filed by the respondents no. 6 to 8

has been allowed and the judgment dated 30/10/2000 passed by

the Revenue Appellate Authority, Pali has been set aside while

restoring the order dated 21/9/1994 passed by the Addl. Collector,

Desuri.

(3 of 6) [CW-14004/2022]

The suit was filed by Mst. Ganga and Phooli inter alia with

the averments that the plaintiffs and defendant nos. 2 and 3 are

children of Pabu Dan and defendant no.1 Mst. Dhapu is wife of late

Pabu Dan. Pabu Dan, who was khatedar of land ad measuring 39

bigha 12 biswa, who had died about 10 years prior to filing of the

suit. On account of his death, the land in question fell in the share

of plaintiffs and defendants no. 1 to 3 under the provisions of

Hindu Succession Act, 1956 ('the Act, 1956'), based on which

mutation no. 175 dated 9/10/1973 was filled, which should have

been the basis for revenue entries, however, defendant no. 8,

Tehsildar, has made alteration in the entries and only name of

defendant nos. 1 to 3 were indicated in the Jamabandi for the year

2034-37. The plaintiffs were entitled to get their 1/5 th share each

mutated qua the said land. The defendant Goverdhan Singh has

transferred 1/3rd land on 17/10/1981 to defendant nos. 4 to 7,

which transfer was void qua the plaintiffs and plaintiffs were not

bound by the said transfer. It was claimed that the plaintiffs were

sought to be dispossessed from the land in question and,

therefore, injunction was sought against the defendants. It was

prayed that the plaintiffs have 1/5 th share each, which be declared

and respondents be restrained from interfering with their

possession.

Written statement was filed by defendant nos. 1 to 3

supporting the averments made in the plaint. It was claimed that

the 1/3rd share was transferred for Rs.19,000/-, however, the

consideration has not been paid.

Written statement was also filed by defendant nos. 4 to 7

inter alia claiming that Pabu Dan died before coming into force the

Hindu Succession Act, 1956, the land was 'Maufi Doli' and that the

(4 of 6) [CW-14004/2022]

defendants were in possession of the property since the transfer

took place. The suit was barred by limitation, the defendants have

become owners by adverse possession.

The Additional Collector framed as many as 10 issues and

came to the conclusion that the land ad measuring 39 bigha 12

biswa be recorded in the name of plaintiffs and defendants no. 1

and 2 to the extent of 1/5th share each and qua rest 1/5th share

the same be recorded in favour of defendant nos. 4 to 7.

Feeling aggrieved the defendant nos. 4 to 7 filed appeal

before Revenue Appellate Authority. The Revenue Appellate

Authority by its judgment dated 30/10/2000 (Annex.3) came to

the conclusion that as during the pendency of the suit, Goverdhan

Singh had died and his legal representatives were not brought on

record, the decree passed against the dead person was void. As

1/3rd share was transferred by Goverdhan Singh and possession

was handed over to the purchasers, simple suit for permanent

injunction was not maintainable. The Revenue Appellate Authority

also came to the conclusion that the mutation which took place on

17/10/1981 has not been questioned and that it was not proved

that Pabu Dan died after 1956 and consequently set aside the

judgment passed by the Addl. Collector.

Feeling aggrieved, the respondent nos. 4 to 7 filed appeal

before the Board of Revenue. The Board of Revenue came to the

conclusion that non-impleadment of legal representatives of

Goverdhan Singh was factually incorrect as the application in this

regard was filed on 27/8/1991 and the same was allowed on

18/11/991, only because the title was not amended, the Revenue

Appellate Authority committed mistake in accepting the said plea.

The Board of Revenue also came to the conclusion that the land in

(5 of 6) [CW-14004/2022]

question, after death of Pabu Dan, was recorded in the name of all

the five legal representatives as 1/5th share each, which mutation

was subsequently tinkered by recording the same in favour of wife

and two sons of deceased Pabu Dan for which there was no basis

and that in terms of the judgment of Hon'ble Supreme Court in

Vineeta Sharma vs. Rakesh Sharma : 2020 (3) DNJ (SC) 817 the

plea regarding daughters not having share in the suit property

was baseless and consequently allowed the appeal.

Learned counsel for the petitioners attempted to make

submissions that the Board of Revenue was not justified in setting

aside the judgment of Revenue Appellate Authority inasmuch as

the same was based on the legal position and the facts of the

case, wherein, it was apparent that the land was recorded in the

name of wife and two sons of deceased Pabu Dan and, therefore,

Goverdhan Singh had 1/3rd share in the property, which was

transferred to the petitioners and, therefore, the claim made by

the daughters seeking 1/5th share each in the property has no

substance.

Further submissions were made that the petitioners being

bonafide purchasers of the property in question, the Board of

Revenue was not justified in setting aside the order passed by the

Revenue Appellate Authority.

I have considered the submissions made by learned counsel

for the petitioners and have perused the material available on

record.

The Addl. Collector as well as the Board of Revenue have

found that after the death of Pabu Dan, the land in question was

recorded in the name of all five legal representatives including the

plaintiffs - daughters. On account of which proceedings and at

(6 of 6) [CW-14004/2022]

whose instance the revenue entries were changed from 05 legal

representatives to only three i.e. wife and two sons, has not at all

been proved by the petitioners to indicate that how the plaintiffs -

two daughters lost their right in the property owned by Pabu Dan.

Once it was found that the daughters had share and their names

were recorded in the revenue record and by no valid proceedings,

rather only by interpolation in the revenue record the same was

recorded in the name of wife and two sons of deceased Pabu Dan,

the same cannot take away the rights of two daughters in the land

in question, therefore, the Board of Revenue was justified in

setting aside the judgment passed by the Revenue Appellate

Authority.

So far as the plea raised regarding the petitioners being the

bonafide purchasers is concerned, the fact that only Goverdhan

Singh had transferred the property in favour of the petitioners,

Goverdhan Singh could not have transferred more than what right

he had in the property, which was 1/5 th share only, therefore, the

Addl. Collector by his judgment dated 21/9/1994 has specifically

directed that the land to the extent of 1/5 th share of Goverdhan

Singh, be recorded in favour of the petitioners herein, i.e. the

transferees from Goverdhan Singh, which direction is wholly just

and fair and which direction has now been upheld by the Board of

Revenue.

In view of the above discussion, the petition has no

substance and the same is, therefore, dismissed.

(ARUN BHANSALI),J 34-baweja/-

Powered by TCPDF (www.tcpdf.org)