Bhanwaru Khans Lrs And Ors vs State Of Raj. And Ors
2023 Latest Caselaw 2143 Raj

[2023/RJJD/006032] (1 of 10) [SAW-560/2015]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Spl. Appl. Writ No. 560/2015

1. Bhanwaru Khan S/o Jamal Khan, since deceased through legal representatives:

1/1. Phule Khan S/o Bhanwaru Khan, aged 67 years 1/2. Ranji Khan S/o Bhanwaru Khan, aged 65 years 1/3. Jale Khan S/o Bhanwaru Khan, through deceased legal representatives:-

1/3/1. Baseera Bano Wd/o Late Shri Jale Khan, aged 50 years, R/o Sujangarh Tehsil Sujangarh, District Churu.

1/3/2. Safi Khan Late Shri Jale Khan, aged 33 years, R/o Sujangarh Tehsil Sujangarh, District Churu.

1/3/3. Rahish Khan S/o Late Shri Jale Khan, aged 25 years, R/o Sujangarh Tehsil Sujangarh, District Churu.

1/3/4. Aasmin Bano W/o Mansukh Khan, D/o late Shri Jale Khan, aged 37 years, R/o Sujangarh Tehsil Sujangarh, District Churu.

1/3/5. Shahlaz Bano W/o Mubharak Khan, aged 28 years, D/o Late Shri Jale Khan, R/o Jajod, Tehsil Laxmangarh, District Sikar.

1/3/6. Shakeela Bano W/o Aarif Khan, aged 25 years, D/o Late Shri Jale Khan, R/o Village Sikar, Tehsil and District Sikar.

1/4. Babu Khan S/o Bhanwaru Khan, aged 42 years, 1/5. Murad Khan S/o Bhanwaru Khan, aged 40 years, 1/6. Fareed Khan S/o Bhanwaru Khan, aged 44 years, All R/o Sujangarh, Tehsil Sujangarh, District Churu. 1/7. Mst. Umrav D/o Bhanwaru Khan W/o Mustak Khan, Aged 63 years, R/o Jaswantgarh, Tehsil & District Nagaur.

1/8. Mst. Hazara D/o Bhanwaru Khan, W/o Ahmed Khan, Aged 43 years, R/o Shobhasar, District Churu.

2. Yasin Khan S/o Late Jamal Khan, since deceased through legal representatives:

2/1. Jorawar Khan S/o Late Yasin Khan, aged 53 years, 2/2. Sokhat Khan S/o Late Yasin Khan, aged 50 years, 2/3. Bhadar Khan S/o Late Yasin Khan, aged 48 years, 2/4. Akbar Khan S/o Late Yasin Khan, aged 45 years,

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2/5. Yusuf Khan S/o Late Yasin Khan, aged 44 years, 2/6. Sugra D/o Late Yasin Khan, W/o Nanu Khan, aged 42 years, 2/7. Balkesh D/o Late Yasin Khan, W/o Sokhat Khan, aged 40 years.

All are R/o Sujangarh, District Churu.

3. Peeru Khan S/o Late Jamal Khan, aged 77 years

4. Ahmed Khan S/o Late Jamal Khan, aged 66 years, All R/o Sujangarh, Tehsil Sujangarh, District Churu.

----Appellants Versus

1. State of Rajasthan to be served through Tehsildar, Sujangarh, District Churu.

2. Board of Revenue for Rajasthan at Ajmer.

3. Land Settlement Officer cum Revenue Appellate Authority, Bikaner.

4. Assistant Collector, Sujangarh, District Churu.

5. Suleman Khan S/o Alladeen Khan

6. Inayat Khan S/o Alladeen Khan

7. Ibrahim Khan S/o Alladeen Khan Respondent Nos. 5 to 7 are R/o Sujangarh, District Churu.

----Respondents

For Appellant(s) : Mr. J.L.Purohit, Sr. Advocate with Mr. Shashank R. Joshi.

For Respondent(s)          :    Mr. Sajjan Singh.
                                Mr. Vikram Sharma.


             HON'BLE MR. JUSTICE ARUN BHANSALI

HON'BLE MR. JUSTICE YOGENDRA KUMAR PUROHIT Judgment

10/03/2023

(PER HON'BLE MR. ARUN BHANSALI, J.)

This appeal is directed against the order dated 27/5/2015

passed by the learned Single Judge, whereby, the writ petition

filed by the petitioner has been dismissed.

Jamal Khan, father of petitioners - Bhanwaru Khan, Yasin

Khan, Peeru Khan & Ahmed Khan filed a suit before the Addl.

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Collector, Sujangarh for declaration, correction in revenue record

and partition against the children of Alladeen Khan with the

averments that the original plaintiff Jamal Khan and father of

defendants Alladeen Khan were brothers being children of Jeevan

Khan. It was claimed that the land ad measuring 3 Bigha and 19

Biswa situated in khasra no. 163 (old khasra No. 52) was in

possession of Jamal Khan and Alladeen Khan from the life time of

Jeevan Khan. It was claimed that Jeevan Khan in his life time

partitioned the said land and southern portion ad measuring 1

Bigha 9 Biswa was given to Alladeen Khan and northern portion ad

measuring 02 Bigha was given to Jamal Khan, since then he was

in peaceful possession and presently same was in possession of

children of Jamal Khan. It was claimed that the portion which was

received by way of partition continued to be in possession of both

the parties/their children.

It was also claimed that as Jamal Khan was illiterate and was

aged 80 years, the entire land comprised in khasra no. 163 was

got recorded in the name of Alladeen Khan and, thereafter, in the

name of his children about which Jamal Khan did not know though

he and, thereafter, his children remained in possession. When the

defendants attempted to take forcible possession of the land in

question, they became aware of the fact that the land has been

wrongly recorded in the name of defendants. Based on the said

submissions, it was prayed that it be declared that the land

comprised in Khasra No. 163 ad measuring 3 Bigha 19 Biswa

situated at village Dulia, Tehsil Sujangarh is of joint tenancy of

Jamal Khan and Alladeen Khan in which Jamal Khan had half share

and, therefore, plaintiffs are entitled to get their names entered in

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revenue record. The property be partitioned and same be recorded

in the name of plaintiffs.

The suit was resisted by the defendants with the submissions

that Jeevan Khan never partitioned the land and Jamal Khan was

never in possession of 02 Bigha land, the land was always

recorded as Khatedari of Alladeen Khan and only in Jamabandi of

Samvat Year 2014-2017 and Girdawari of 2018-2020 the same

was shown in cultivatory possession of Jamal Khan. It was averred

that merely on the basis of said entries, the khatedari rights

cannot be claimed.

The trial court framed four issues and the parties led

evidence.

After hearing the parties the Assistant Collector, Sujangarh

by his judgment and decree dated 30/7/1991 decreed the suit.

Feeling aggrieved, the defendants filed first appeal. The

Revenue Appellate Authority by its judgment dated 24/5/2002

dismissed the appeal, against which second appeal was filed

before the Board of Revenue.

The Board of Revenue by its judgment dated 16/2/2012

reversed the finding recorded by the trial court as well as the first

appellate court and dismissed the suit.

Feeling aggrieved, the petitioners filed writ petition before

this Court, which has been dismissed by the learned Single Judge

by the judgment impugned.

Learned counsel for the petitioners made submissions that

the Board of Revenue and learned Single Judge fell in error in

accepting the appeal/dismissing the writ petition.

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Submissions were made that in Jamabandi pertaining to

Samvat Year 2014-2017 the land was recorded in the name of

Alladeen as Jagirdar, however, in respect of 02 Bigha of land name

of Jamal Khan was entered as tenant and, therefore, in view of the

provisions of Section 9 of the Rajasthan Land Reforms and

Resumption of Jagirs Act, 1952 ('the Act, 1952'), Jamal Khan

became khatedar tenant of 02 Bigha of land and Alladeen became

khatedar tenant of 01 Bigha 09 Biswa of land, however, learned

Single Judge wrongly refused to consider the provisions of the Act,

1952 only on account of the fact that the said plea was not raised

in the suit.

Submissions have been made that as from the record the

said aspect is apparent, the Board of Revenue and learned Single

Judge by applying the provisions of the Act, 1952 should have

held in favour of the petitioners and on that count alone the

orders impugned deserve to be set aside.

Submission were also made that once the land was recorded

in favour of the appellant's father in Jamabandi of Samvat Year

2014-2017 and only in subsequent years the same was recorded

in the name of Alladeen Khan, in absence of any explanation for

deletion of the name of Jamal Khan, the plea raised regarding

absence of name of Jamal Khan qua the Jamabandi of Samvat

year 2011-2013 could not be countenanced.

Learned counsel for the appellants made submissions that it

was an admitted case that the land in question was ancestral and,

therefore, as Jamal Khan and Alladeen Khan were the only two

successors of Jeevan Khan, they were entitled to half share each

and as the appellants were in possession of half portion of land

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i.e. 02 Bigha out of 3 Bigha 19 Biswa, the Board of Revenue and

learned Single Judge fell in error in allowing the appeal/dismissing

the writ petition.

Reliance was placed on the judgment in Tara & Ors. vs.

State of Rajasthan : D.B.Civil Special Appeal No.185/2001 decided

on 15/7/2015.

Learned counsel for the respondents vehemently contested

the submissions. It was submitted with reference to the

Jamabandi of Samvat Year 2011-2013 that the land in question

was recorded in the name of Alladeen Khan alone and once the

same was recorded in the name of Alladeen alone, the

introduction of name of Jamal Khan in the Jamabandi for the year

2014-2017 requires explanation inasmuch as it is not even the

case of the plaintiffs in the suit that Jamal Khan was introduced as

tenant of the said land by Alladeen Khan.

It was submitted that mere fact that the name of Jamal Khan

without any explanation stands indicated in the Jamabandi of

Samvat year 2014-2017 by itself cannot create any right as

entries in the revenue record and Jamabandi are only for fiscal

purposes and no ownership is conferred on the basis of said

entries.

Submissions were made that in the plaint, no averments

worth the name were made claiming benefit of Section 9 of the

Act, 1952/status as tenant of khudkast at the time of Jagir

resumption and only before the Board of Revenue, orally said

aspect was raised, which was turned down for lack of pleadings by

the Board of Revenue and said aspect regarding lack of pleading

was upheld by the learned Single Judge, which aspect does not

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call for any interference as it is well settled that no decision based

on grounds outside the pleadings of the parties can be made and

that pleadings are necessary to enable the court/authority to

decide the said aspect and, therefore, the judgment impugned

passed by the learned Single Judge does not call for any

interference.

It was emphasized that the land in question was recorded in

the name of Alladeen Khan and the respondents all alone as is

evident from Ex.A/5, A/6, A/7 and A/9 produced before the trial

court and, therefore, the plea raised has no basis and, therefore,

the appeal deserves dismissal.

Reliance was placed on the judgments in Shri Narain & Ors.

vs. State of Rajasthan & Ors. : 2007 (3) RLR 769, National

Textile Corporation Ltd. Vs. Naresh Kumar Badri Kumar Jagad &

Ors. : AIR 2012 SC 264, Jitendra Singh vs. State of Madhya

Pradesh & Ors. : 2021 (3) RLW 2291 and Jattu Ram vs. Hakam

Singh & Ors. : AIR 1994 SC 1653.

We have considered the submissions made by learned

counsel for the parties and have perused the material available on

record.

At the outset it may be noticed that the case set up in the

plaint was that the land in question was being used from the life

time of Jeevan Khan, father of Jamal Khan and Alladeen Khan

jointly and Jeevan Khan in his life time by partitioning the

property gave a portion of the land ad measuring 02 Bigha to

Jamal Khan, which was in his possession followed by his children's

possession and, therefore, based on the said submissions

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correction in revenue entries as well as partition was sought by

the plaintiffs.

The foundation of the plea, apparently, is that the property

was joint/belonging to father, who partitioned the same amongst

his two sons. The averments in the plaint are too hazy in this

regard. Further, the revenue record which has been relied on by

both the parties does not support either of the case of the

plaintiffs inasmuch as the land in question was at no stage

recorded in the name of Jeevan Khan and in none of the

documents produced, the same is shown in joint tenancy of Jamal

Khan and Alladeen Khan and as such, apparently, the plea raised

in the suit was not established.

In the evidence led by the parties, the appellants-petitioners

failed to establish that either the land originally belonged to

Jeevan Khan and/or Jamal Khan and Alladeen Khan were having

joint tenancy of the land in question and, therefore, apparently,

the Board of Revenue in its judgment was justified in coming to

the conclusion that merely on account of entries in Khasra

Girdawari for Samvat year 2018-2020 and in Jamabandi for

Samvat Year 2014-2017 ownership of the property cannot be

claimed.

Hon'ble Supreme Court in the case of Jattu Ram (supra) and

Jitendra Singh (supra) has laid down that entries in revenue

record or Jamabandi is only for fiscal purpose i.e. payment of land

revenue and no ownership is conferred on the basis of the entries.

Besides the above, vide Ex.A/9, the land in question for

Samvat Year 2011-2013 has been shown in the name of Alladeen

Khan, as to on account / on which event, the portion of land ad

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measuring 02 Bigha came to be recorded in the name of Jamal

Khan has neither been averred nor has been established by the

plaintiffs and, therefore, the plea raised based on the Jamabandi

for Samvat Year 2014-2017 has rightly been declined by the Board

of Revenue and upheld by the learned Single Judge.

Learned counsel for the appellants laid great emphasis on

the fact that in Jamabandi for Samvat Year 2014-2017 (Annex.2

to the writ petition) while Alladeen Khan has been indicated as

'khudkast', Jamal Khan has been shown as tenant qua 02 Bigha of

land and based on the said indication, it has been claimed that

under Section 9 of the Act, 1952 the khatedari rights accrued in

the said land to Jamal Khan being the tenant and, therefore,

based on the said aspect, the Board of Revenue should not have

interfered with the judgment of the lower courts and the learned

Single Judge ought to have reversed the judgment of Board of

Revenue on the said count.

The plea sought to be raised has, apparently, no basis

whatsoever in the plaint. Once the claim made in the plaint is of

joint tenancy/hereditary succession i.e. both brothers being equal,

change sought of the said status, based on the revenue entries,

i.e. to claim that Jamal Khan was a tenant of khudkast i.e. of

Alladeen - his brother, on the face of it, cannot be countenanced.

The appellants were well aware of the revenue record and in

case the status of Jamal Khan was that of 'tenant' and of

'khudkast' of Alladeen Khan, his brother, in the first instance, the

said plea would have been raised in the plaint. The said aspect

pertaining to the status merely based on the revenue entry has

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rightly been declined to be examined by Board of Revenue and

upheld by the learned Single Judge.

Further a bare look at the Jamabandi for Samvat Year 2011-

2013 corresponding to the year 1954-56 would reveal that the

same nowhere contains the name of Jamal Khan and Alladeen

Khan has been shown as 'khudkast' and in terms of provisions of

Section 9 of the Act, 1952 once on the commencement of the Act

i.e. 18/02/1952 only those, who were recorded as tenants in Jagir

land would get khatedari rights. The introduction of name of Jamal

Khan in subsequent Jamabandi for Samvat Year 2014-2017,

corresponding to years 1957-1960, when the same did not exist at

the time of commencement of the Act, would not confer any right

on Jamal Khan even under the provisions of Section 9 of the Act,

1952 and on that count also, the plea raised has no substance.

In view of the above discussion, the appeal has no substance

and the same is, therefore, dismissed.

(YOGENDRA KUMAR PUROHIT),J (ARUN BHANSALI),J

baweja/-

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