Jhabar Ram vs B.O.R. & Ors on 5 May, 2009

                JHABAR RAM VS. BOARD OF REVENUE, AJMER & ORS.
                         (S.B.CIVIL WRIT PETITION NO.3343/96)
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JHABAR RAM VS. BOARD OF REVENUE, AJMER & ORS.
(S.B.CIVIL WRIT PETITION NO.3343/96)

Dated:   5th May,2009.

            HON'BLE MR.JUSTICE SANGEET LODHA

Mr. Sudhir Sharma, for the petitioner.
Mr. K.N.Joshi, for the respondents no.4 and 5.
None present for the respondents no. 1 to 3.

1.    This writ petition is directed against order dated 10.7.96

passed by the Board of Revenue,Rajasthan, whereby the appeal

preferred by the respondent no. 4 Shri Lachhu Ram against the

judgment and decree dated 10.4.91 passed by the Revenue

Appellate Authority ( in short "RAA" hereinafter), Bikaner has

been allowed. Consequently, the judgment and decree dated

28.2.86 passed by the Assistant Collector, Rajgarh dismissing

the suit preferred by the petitioner, stands restored .

2.    The brief facts relevant for the present purpose are that

late Shri Aad Ram was holding 106 bighas of land in Punsisar

and Somsisar, Tehsil Taranagar, District Churu. He was also

holding 75.15 bighas of land in Tidiasar, Tehsil Nohar, District Sri

Ganganagar. Late Shri Aad Ram was survived by four sons

namely, Girdhari, Lachhu Ram, Farsa Ram and Oma Ram. Out of

these four sons, Oma Ram expired issue less . Farsa Ram also

expired living behind his widow Smt. Shera. The petitioner herein

is adopted son of Smt. Shera .

3.    After the death of Shri Aad Ram, the land measuring 75.15
                     JHABAR RAM VS. BOARD OF REVENUE, AJMER & ORS.
                             (S.B.CIVIL WRIT PETITION NO.3343/96)
                                  2

bighas situated in village Tidiasar was mutated in the names of

Girdhari and Lachhu Ram 2/3 share and Smt. Shera , widow of

Farsa Ram 1/3          share vide mutation opened on 22.8.56.

However, the mutations in respect of the lands situated in

villages Punsisar and Somsisar were opened in the names of

Girdhari and Lachhu Ram only excluding Smt. Shera. The

mutation in respect of the land situated in Punsisar and Somsisar

were opened after the mutation opened in respect of the land in

village Tidiasar.

4.    After the death of Smt. Shera, the mutation in respect of

the lands Tidiasar was opened in the name of the petitioner

being adopted son of Smt. Shera and a note to this effect was

made in the relevant mutation register and thereafter, the

relevant entries were made in Jamabandi as well.

5.    The petitioner demanded 1/3rd share from the Lachhu Ram

and Girdhari, respondents no. 4 and 5 herein, in the lands

situated in villages Punsisar and Somsisar as well, which was

refused. In these circumstances, the petitioner filed a suit for

declaration and correction of entries in the court of Assistant

Collector, Rajgarh. The suit was dismissed vide judgment and

decree dated 28.2.86 on the ground that the name of the

petitioner or Smt. Shera does not find mention in the Revenue

Record and Smt. Shera was never in possession of the lands in
                JHABAR RAM VS. BOARD OF REVENUE, AJMER & ORS.
                        (S.B.CIVIL WRIT PETITION NO.3343/96)
                               3

question.

6.    Aggrieved by the judgment and decree dated 28.2.86

passed by the Assistant Collector, Rajgarh, the petitioner

preferred an appeal before the RAA , Bikaner . The RAA arrived

at the conclusion that when 1/3rd share was given to Smt. Shera

being the widow of Shri Farsa Ram in the land situated in village

Tidiasar, there was no reason to deny her share in the lands of

villages Punsisar and Somsisar. Accordingly, the appeal preferred

by the petitioner was allowed and the suit was decreed by the

RAA vide judgment and decree dated 10.4.91.

7.    Aggrieved by the judgment and decree dated 10.4.91,

second appeal was preferred by the respondent no. 4 before the

Board of Revenue which has been allowed by the order

impugned dated 10.7.96 and the judgment and decree dated

10.4.91 passed by the RAA, Bikaner has been set aside and

consequently,the judgment and decree dated 28.2.86 passed by

the Assistant Collector, Rajgarh stands restored. Hence, this

petition.

8.    The learned counsel for the petitioner submitted that the

learned Board of Revenue has seriously erred in holding that

since Smt. Shera did not challenge the mutations entered in the

names of respondents no. 4 and 5 during her lifetime therefore,

the same cannot be challenged by her adopted son, the
                 JHABAR RAM VS. BOARD OF REVENUE, AJMER & ORS.
                         (S.B.CIVIL WRIT PETITION NO.3343/96)
                                 4

petitioner herein. The learned counsel submitted that the fact

that the name of Smt. Shera was not there in the revenue record

cannot be a ground for rejecting the petitioner's prayer for

declaration of his rights. The learned counsel submitted that the

facts that Shri Farsa Ram was real brother of the respondents

no. 4 and 5 and Smt. Shera was his widow and the petitioner is

adopted son of Smt. Shera are not in dispute. Accordingly, it is

submitted by the learned counsel that the lands being ancestral

in the name of late Shri Aad Ram, Farsa Ram had birth right and

after his death , his widow was entitled to a share in the

property and after the death of the widow, the petitioner , her

adopted son is entitled to 1/3rd share in the lands in question.

9.    Per contra, the learned counsel Mr. K.N.Joshi, appearing on

behalf of respondents no. 4 and 5 submitted that Smt. Shera

was alive till the year 1972 but she did not claim any share in

the lands in question and she never remained in possession of

the lands during her lifetime therefore, the petitioner claiming

himself to be her adopted son is not entitled for any share in the

lands in question. It is submitted by the learned counsel that

even according to the petitioner , he was adopted by Smt. Shera

on 22.12.62 and Smt. Shera was alive till the year 1972 but she

did not file any suit for declaration of her rights in the lands in

question therefore, at this belated stage, the petitioner cannot
                 JHABAR RAM VS. BOARD OF REVENUE, AJMER & ORS.
                         (S.B.CIVIL WRIT PETITION NO.3343/96)
                                5

claim declaration of his khatedari rights in the lands in question.

Accordingly, it is submitted that the learned Board of Revenue

has committed no error in setting aside the judgment and decree

dated 10.4.91 passed by the RAA, Bikaner.

10.   I have considered the rival submissions and perused the

record.

11.   Admittedly, the lands in question are ancestral and

therefore, the respondent nos. 4 and 5 and late Shri Farsa Ram

had a birth right to have share in the lands. It is also not in

dispute that after the death of Shri Farsa Ram, his widow Smt.

Shera was entitled for 1/3rd share in the lands in question. The

adoption of the petitioner by Smt. Shera was not disputed by the

respondent no.4 and 5 before the learned trial court and

therefore, no issue was framed in this regard.     Therefore, the

petitioner's entitlement for 1/3rd share in the land being adopted

son of Smt. Shera cannot be disputed. It is not the case of the

respondents that any partition has taken place amongst the legal

heirs of Shri Aad Ram and in that Smt. Shera could get only 1/3rd

share in the land situated at village Tidiasar and no share was

allotted to her in the lands situated in villages Punsisar and

Somsisar. Merely because inadvertently, the lands situated in

village Punsisar and Somsisar have been recorded in the names

of respondents no. 4 and 5 only, the share of Smt. Shera and
                 JHABAR RAM VS. BOARD OF REVENUE, AJMER & ORS.
                         (S.B.CIVIL WRIT PETITION NO.3343/96)
                                6

consequently, the share of the petitioner being adopted son of

Smt. Shera does not stand extinguished. Neither the fact that

her name has not been entered in the Revenue Record nor the

fact that she was not in actual possession of the land for all

these years can be a ground for denial of her due share in the

lands in question for which she was legally entitled. In this view

of the matter, in considered opinion of this court, the learned

Board of Revenue has seriously erred in setting aside the

judgment and decree passed by the RAA, Rajgarh, whereby the

judgment and decree passed by the Assistant Collector , Rajgarh

dismissing the suit preferred by the petitioner has been set aside

and the suit preferred by him for declaration of his rights has

been decreed.

12.   In view of the discussion above, the order impugned

passed by the Board of Revenue deserves to be quashed and set

aside.

13.   In the result, the writ petition succeeds, it is hereby

allowed. The impugned order dated 10.7.96 passed by the Board

of Revenue,Rajasthan is set aside and the judgment and decree

dated 10.4.91 passed by the RAA , Bikaner decreeing the suit

preferred by the petitioner before the Assistant Collector,

Rajgarh is restored. No order as to costs.

                                         (SANGEET LODHA),J.