Rajasthan High Court
Laxman Singh Adopted Son Of Shri Phool ... vs Sayar Singh Son Of Ramnath Singh ... on 7 October, 2024
Bench: Manindra Mohan Shrivastava, Ashutosh Kumar
[2024:RJ-JP:41997-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Special Appeal Writ No. 493/2020
Laxman Singh Adopted Son Of Shri Phool Singh, Resident Of
Village Badalwas, Tehsil And District Sikar.
----Appellant
Versus
1. Sayar Singh Son Of Ramnath Singh, Resident Of Village
Badalwas, Tehsil And District Sikar.
2. Ishwar Singh Son Of Ramnath Singh, Resident Of Village
Badalwas, Tehsil And District Sikar.
3. Manohar Singh Son Of Kushal Singh, Resident Of Village
Badalwas, Tehsil And District Sikar.
4. Bhanwar Kanwar Wife Of Prahlad Singh, Resident Of
Village Badalwas, Tehsil And District Sikar.
5. Richpal Singh Son Of Prahlad Singh, Resident Of Village
Badalwas, Tehsil And District Sikar.
6. Jai Singh Son Of Prahlad Singh, Resident Of Village
Badalwas, Tehsil And District Sikar.
7. Mangal Singh Son Of Kushal Singh, Resident Of Village
Badalwas, Tehsil And District Sikar
8. Mahendra Singh Son Of Kushal Singh, Resident Of Village
Badalwas, Tehsil And District Sikar.
9. Swarup Kanwar Daughter Of Prahlad Singh Wife Of
Raghuvir Singh, Resident Of Village Ardaka, Tehsil
Kishangarh, District Ajmer.
10. Rup Kanwar Daughter Of Prahlad Singh Wife Of Bajarang
Singh, Resident Of Village Rajod, Tehsil Jayal, District
Nagaur.
11. Santa Kanwar Daughter Of Prahlad Singh Wife Of
Rajendra Singh, Resident Of Village Ghatwa, Tehsil Nawa,
District Nagaur.
12. Vinod Kanwar Daughter Of Prahlad Singh Wife Of
Rajendra Singh, Residing At Illag Chudawal, District Pali,
Presently Resident Of Shakti Apartment, Moti Dungari
Road, Kharbuja Mandal, Jaipur.
13. Kamod Kanwar Daughter Prahlad Singh Wife Of Shambhu
Singh, Resident Of Village Rawli Ki Dhani, Tehsil Balotra,
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District Barmer
14. Punjab National Bank, Branch Badalwas, Through
Manager District Sikar.
15. State Of Rajasthan, Through Tehsildar, District Sikar.
----Respondents
For Appellant(s) : Mr. Himanshu Sogani
Mr. Akshat Khandelwal
For Respondent(s) : Mr. Pawan Pareek with
Mr. Raghvendra Singh
HON'BLE THE CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA
HON'BLE MR. JUSTICE ASHUTOSH KUMAR
Judgment
REPORTABLE
07/10/2024
1. Heard.
2. This appeal is directed against the order dated 02.03.2020
passed by the learned Single Judge whereby the petition filed by
the appellant, assailing the order passed by the Board of Revenue
in second appeal, has been dismissed.
3. Learned counsel for the appellant would submit that the
revenue suit was filed seeking declaration of khatedari rights and
no declaration of legal status as adopted son was sought by the
appellant. Merely because the defendants in the revenue suit
disputed the legal status, there was no occasion for the Revenue
Court to go into the question with regard to the legal status of the
appellant as the adopted son of late Phool Singh, more so when in
other mutation proceedings, defendants did not dispute this legal
status.
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4. We find that the Board of Revenue and learned Single Judge
both have concurrently held that once the legal status of the
appellant as adopted son of late Phool Singh was disputed by the
defendants in the revenue suit, it fell for decision making as to
whether the appellant Laxman Singh was legally adopted son of
Phool Singh.
5. Learned counsel for the appellant does not quarrel with the
settled legal position that if the issue pertains to declaration of
legal suits, the jurisdiction lies only with the Civil Court and not
with the Revenue Court. His case seems to be that the issue did
not arise for consideration before the Revenue Court.
6. We are unable to accept the submission of learned counsel
for the appellant. It is undisputed that the suit was filed seeking
declaration of khatedari rights, which, in turn, was fundamentally
premised on claim of a legal status as adopted son of late Phool
Singh. The defendants however, refuted this claim and the legal
status. This accordingly, give rise to an issue calling for
determination. As the position of law in this regard stands well
settled, in view of various decisions referred to by the learned
Single Judge in its order, the jurisdiction with regard to declaration
of legal status as to whether the appellant was legally adopted son
of late Phool Singh lies exclusively with the Civil Court and the
Revenue Court does not have jurisdiction. This legal position has
been duly acknowledged under the statutory scheme of the
Rajasthan Tenancy Act, 1955 (for short 'The act of 1955').
7. Therefore, to the extent of the finding recorded by the
Board of Revenue and affirmed by the learned Single Judge that
the jurisdiction with regard to declaration of legal status lies
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exclusively with the Civil Court and not the Revenue Court, we are
not inclined to interfere with those orders.
8. However, there is considerable force in the submission of the
learned counsel for the appellant that even if it was held by the
Board of Revenue and learned Single Judge that the jurisdiction to
declare legal status lies only with the Civil Court to the exclusion
of Revenue Court, the proper course to be followed was to refer
the issue for determination of the Civil Court, and after findings
were returned, decide the revenue suit as revenue suit not only
involves the determination of legal status but also other issues.
9. In this regard, it is relevant to refer to the provisions
contained in Section 239 of the Rajasthan Tenancy Act, 1955
which reads thus:-
"239. Procedure when plea of proprietary right
raised-- (1) If in any suit or proceeding in a
revenue court, a question of proprietary right in
respect of land forming the subject matter of such
suit or proceeding is raised and such question has
not previously been determined by a civil court of
competent jurisdiction the revenue court shall
frame an issue on the question of proprietary right
and submit the record to the competent civil court
for the decision of that issue only.
Explanation I. -- A plea of proprietary right which
is clearly untenable and intended solely to oust
the jurisdiction of revenue court shall not be
deemed to raise a question of Proprietary right
within the meaning of this section.
Explanation II.-- A question of proprietary right
does not include the question whether such land is
'Khudhasht'.
(2) The civil court, after re-framing the issue, if
necessary, shall decide such issue only and return
the record together with its finding thereon to the
revenue court which submitted it.
(3) The revenue court shall then proceed to
decide the suit accepting the finding of civil court
on the issue referred to it.
(4) An appeal from a decree of a revenue court
passed in a suit in which an issue involving a
[2024:RJ-JP:41997-DB] (5 of 7) [SAW-493/2020]
question of proprietary right has been decided by
a civil court under sub-section (2) shall lie to the
court which having regard to the valuation of the
suit, has jurisdiction to hear appeals from the
court to which the issue of proprietary right had
been referred.
(5) A second appeal from a decree or order
passed by a civil court in appeal under sub-
section (4) shall lie to the High Court on any of
the grounds mentioned in section 100 of the
Code of Civil Procedure, 1908 (Central Act V of
1908)."
10. Sub-section (1) of Section 239 lays down the procedure to
be adopted if any suit or proceedings in a Revenue Court, a
question of proprietary right in respect of the land forming the
subject matter of such suit or proceeding is raised and where such
question has not previously been determined by a Civil Court or
competent jurisdiction.
In such an eventuality, the Revenue Court is obliged to frame
an issue on the question of proprietary right and submit the
records to the competent Civil Court for the decision of that issue.
The Civil Court then, after re-framing the issue, if necessary,
shall decide the issue only and return the records together with its
findings thereon to the Revenue Court which submitted it. The
provision contained in sub-section (3) further provides that the
Revenue Court shall then proceed to decide the suit accepting the
finding of Civil Court on the issue referred to it.
11. In view of the aforesaid statutory scheme, we are of the view
that even if it was a case where the Revenue Court and the
learned Single Judge arrived at a conclusion that the issue as to
whether the appellant was legally adopted son of late Phool Singh
was required to be decided by a Civil Court and fell outside the
jurisdiction of Revenue Court, the procedure prescribed under sub-
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section (1) of Section 239 of the Act of 1955 was required to be
followed. The Revenue Court was required to frame an issue and
then refer the same to the Civil Court of competent territorial
jurisdiction and await the return of record together with findings of
the Civil Court.
12. Learned counsel for the respondents could not dispute this
legal position and requirement of Section 239 of the Act of 1955
and the procedure to be followed.
13. Accordingly, though we are not inclined to interfere with the
findings of the Board of Revenue and the learned Single Judge to
the extent it held that the declaration of legal status could be a
subject matter of consideration of Civil Court and not the Revenue
Court, an issue was required to be framed and referred to the Civil
Court which is not done. Therefore, this appeal is partly allowed.
14. The Revenue Court of Assistant Collector, Sikar is directed to
frame appropriate issue with regard to declaration of legal status
and refer forthwith the same to the Civil Court of competent
jurisdiction and then decide the matter on the basis of the findings
recorded by the Civil Court.
15. Since it is an old matter, the reference of dispute shall be
made by the Revenue Court at first instance within a period of 30
days from the first date of hearing of the case before it. Parties
are directed to appear before the Revenue Court of Assistant
Collector, Sikar on 22.10.2024. Once the matter is referred to the
Civil Court, it will be open for the parties to pray for expeditious
disposal of the case by the Civil Court and return the finding along
with the records for adjudication of all the issues pending
[2024:RJ-JP:41997-DB] (7 of 7) [SAW-493/2020]
consideration with regard to claim of khatedari rights of the
appellant by the Revenue Board.
(ASHUTOSH KUMAR),J (MANINDRA MOHAN SHRIVASTAVA),CJ
N.Gandhi/Tanisha/6
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