Badri Bai and Anr. Vs B O R Ajmer and Ors.

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In the High Court of Judicature for

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Rajasthan at Jaipur Bench, Jaipur

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ORDER

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S.B Civil Writ Petition No.5531/2014
Badri Bai & Anr. v. The Board of Revenue,
Rajasthan, Ajmer & Ors

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Date of Order:: November 3rd, 2014

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HON’BLE MR. JUSTICE ALOK SHARMA

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Mr.Vijay Choudhary for the petitioners
plaintiffs

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This petition purporting to be one
under Articles 226 & 227 of the Constitution

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of India but in-fact relatable to Article
227 of the Constitution of India (as it is
against the Judgment of the Board of
Revenue, Rajasthan, Ajmer-hereinafter ‘the
Board’-) rendered on 2.04.2014) seeks
setting aside of the judgment of the Board
whereby the Board upset the judgment of the
RevenueAppellateAuthority,Kota
(hereinafter 'the RAA') passed on 25.3.2011

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and restored the judgment and decree dated
19.8.2009 passed by the Sub Divisional
Officer, Khanpur(hereinafter 'the SDO)
dismissing the petitioners plaintiffs
(hereinafter 'the plaintiffs') suit for
declaration and partition under sections 88,
91, 89, 92A, 188 and 53 of the Rajasthan

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Tenancy Act, 1955 (hereinafter ‘the Act of
1955’).

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I have heard learned counsel for the
plaintiffs and perused the impugned judgment
dated 2.4.2014 passed by the Board.

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At the outset it would be in place
to detail the limitations of this Court
exercising powers under Article 227 of the
Constitution of India. The Hon’ble Apex
Court has held that the powers under Article
227 of the Constitution of India can be
exercised in the following situations:

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(i) Where important evidence has been over-
looked;

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(ii) Where the governing legal provisions
have been over-looked or misapplied
resulting in an error apparent on the face
of the record; and

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(iii) Where the courts below have exceeded
their jurisdiction and there is a failure of
justice.

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It has also been held by the Hon'ble Apex
Court that the powers of the Court under
Article 227 of the Constitution of India,
even though, unfettered, are subject to a
high degree of discipline and interference
there-under has to be kept at the minimum.

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The said powers are to be exercised with
care, circumspection caution and only where
the superior courts find that the courts /
Tribunal below are guilty of dereliction of
duty or have adjudicated the issue before
them contrary to the fundamental principles
of law. The Hon’ble Apex Court in the case
of Sadhna Lodh v. National Insurance Company

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Limited, 2003(3) SCC 524 has held that the
supervisory jurisdiction of the High Court
under Article 227 of the Constitution of
India cannot be invoked merely to correct an
error of law not apparent on the face of the
record much less errors of fact as the Court
is not exercising any appellate powers. It
has been held that it is not permissible in
a petition under Article 227 of the
Constitution of India to review the evidence
upon which the Courts below / Tribunals
have proceeded to pass the order which is
impugned before the High Court in a writ
petition.

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In the context of the aforesaid
limitations of the jurisdiction of this
Court under Article 227 of the Constitution
of India, a bare look at the impugned
Judgment dated 2.4.2014 passed by the Board

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and the Judgment of the SDO passed on
19.8.2009 indicates that it was not proved
that Kalyan Bux had adopted Duli Chand and
consequently the plaintiffs' suit based on
such adoption was liable to fail.

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Broadly stated the facts of the case

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are that the plaintiffs filed a suit for
declaration and partition stating that lands
falling in Khasra No.2320 ad-measuring 16
Biswa, Khasra No.2321 ad-measuring 14 Bigha
15 Biswa (total 15 Bigha 11 Biswa) situate
in Village Khanpur Tehsil Khanpur was
ancestral property devolving inter-alia on
them along-with the defendant Shobharam
their brother from their grandfather one
Kalyan in equal measure. It was stated that
owing to their father Duli Chand
predeceasing Kalyan, mutation of the suit
land was manipulated solely in his own name
by the respondent- defendant Shobharam
(hereinafter 'the defendant')- their brother
to their wrongful exclusion. It was prayed
that the property in the hands of Shobharam
be declared to be ancestral, with the
plaintiffs' entitled to share of 1/3rd each
and a decree of partition accordingly be
passed. The suit was contested by the

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defendant Shobharam. It was stated that the
suit property did not devolve as alleged but
came to the defendant as the adopted son of
late Kalyan Bux the recorded khatedar of the
suit land. The natural father of the
defendant- one Ramnarayan- had nothing what-
soever to do with the suit land and had no
khatedari therein. It was submitted that
under mutation No. 108 the Gram Panchayat of
Khanpur had on or about 16.6.1992 opened
mutation in the name of Sita Bai widow of
Kalyan Bux and the defendant as Kalyan Bux
the recorded khatedar had expired about 9/10
years prior thereto. It was submitted that
thereafter following the death of Sita Bai,
her name was deleted from revenue records
qua the suit land and the defendant rendered
the sole khatedar thereof. That position was
reflected in the Jamabandi of Smvt. 2059-
2062 and Smvt. 2051-2055 respectively. It
was submitted that the plaintiffs', though
the defendant's sisters from the loins of a
common natural father thus had no khatedari
rights even remotely in the suit land. The
suit land devolved on the defendant from his
adoptive father, Kalyan Bux and the sisters
as plaintiffs were thus not entitled to a

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declaration or partition as sought.

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Six issues were framed by the SDO,
Khanpur on the pleadings of the parties. The
evidence before the SDO was the Jamabandi of
Smvt. 2059-2062 and Smvt. 2051- 2055
evidencing the sole khatedar of the
defendant. This was buttressed by oral
evidence showing that following the death of
Kalyan Bux, the 'Pagri' was placed on the
head of Shobharam- the defendant (as his
successor) in the presence of Kalyan Bux's
widow Sita Bai. This was testified to even
by one of the two plaintiffs, Santosh Bai in
her testimony. The SDO held that it was
established from evidence with the requisite
preponderance of probability that Kalyan Bux
not Ramnarayan the plaintiffs' grandfather
was the khatedar of the suit land.
Following Kalyan Bux's death, mutation was
opened in the name of his widow Sita Bai and
Shobharma as successors. It was held that
in the circumstances the suit property could
not be held to be the ancestral property of
the plaintiffs and consequently they
were entitled neither to declaration of
khatedari rights sought nor partition
nor permanent injunction.

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The well considered conclusions of

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the SDO leading to the Judgment and Decree
dated 19.8.2009 was however upset and set
aside in appeal. The plaintiffs' suit for
declaration, permanent injunction and
partition was decreed on a misdirection by
the RAA in relying on and misconstruing
mutation entries to hold that Duli Chand-
the father of the plaintiffs and defendant
and not Shobharam had been adopted by Kalyan
Bux and the defendant Shobharam was only
a beneficiary of Duli Chand predeceasing
Kalyan Bux owing to which on Kalyan Bux's
death, Shobha Ram was entered as co-khatedar
of the suit land in the revenue records
along-with the widow of Kalyan Bux Sita Bai.
The RAA overlooked the fact that there was
no evidence whatsoever of Duli Chand's
adoption by Kalyan Bux- yet held that he was
so adopted- quite obviously perversly on
mere surmises and conjectures based on
inferences from mutation entries recording
that Duli Chand was the adopted son of
Kalyan Bux. The Board has on an
objective consideration of the evidence on
record set- aside the perverse judgment and
decree passed by the RAA, Kota and restored

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the one passed by the SDO, Khanpur District
Jhalawar on 19.8.2009. Hence this petition.

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Mr. Vijay Chudhary, counsel for the
plaintiffs has submitted that in terms
of mutation Nos. 108 and 852- Shobharam was
conferred khatedari over the suit land as
the son of Duli Chand who in turn had been
adopted by Kalyan Bux. The conferment of
khatedari rights on Shobharam was fortuitous
owing to Duli Chand having predeceased
Kalyan Bux. It has been submitted that in
the voter list of year 2004 (equivalent to
Smvt. 2061) at S. No.99 Shobharam was
recorded as son of Duli Chand not Kalyan Bux
and further that Shobharam in his statement
had disclosed the name of his father as Duli
Chand and the plaintiffs his sisters. It has
been further submitted that Shobharam had
filed a suit against the legal
representatives of Motilal as son of Duli
Chand albeit the suit had failed for reason
of the Court holding that Duli Chand had
gone in adoption and thus Shobharam as his
son had no rights over Ramnarayan, his
grandfather's property.

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Heard. Perused the impugned judgment
of the Board. Considered

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I am afraid that there is no force

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in the submissions of the counsel for the
petitioners. The burden was on the
plaintiffs to establish that their father
Duli Chand through whom they claimed was
adopted by Kalyan Bux the erstwhile khatedar
of the suit land. Hence it was for the
plaintiffs to establish from the evidence
the year when Duli Chand their father was
adopted, his age at the time of adoption
being less than 15 years and his being
unmarried at the relevant time. Alternative-
ly the plaintiffs had to prove from evidence
on record that the adoption of an older
married man Duli Chand- their father by
Kalyan Bux was buttressed and saved by
custom. The plaintiffs had also to prove the
giving and taking of Duli Chand for a valid
adoption. None of this was done, no evidence
on this score led. Nor even an attempt made
on this count. Only inference of adoption of
Duli Chand was sought to be drawn on the
basis of fiscal entries and a stretched
speculative interpretation thereof. The
plaintiffs' case cannot find traction
without anything more from the mutation
entries in the name of Shobharam also

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recording that Duli Chand was the adopted
son of Kalyan Bux. Such recording without
proof of adoption cannot be of any avail to
the plaintiffs in discharging the burden of
their father Duli Chand having been adopted
by Kalyan Bux. The voter-list purportedly
showing Shobharam as son of Duli Chand is a
government document unilaterally drawn and
cannot be conclusive of Shobharam not having
gone into adoption of Kalyan Bux and allow
as if on a rebound that Duli Chand had gone
in adoption to Kalyan Bux. Law does not
permit conclusions of adoption based on
inferences. Shobharam stating that his
natural father was Duli Chand and the
plaintiffs, his sisters was a statement of
fact which cannot be taken in isolation and
drown or cloud over his specific assertion
in his testimony before the SDO that he was
taken as son in adoption by Kalyan Bux and
his wife Sita Bai. And thus cannot be
destructive of Shobharam's defence in the
plaintiffs' suit.

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The argument of the plaintiffs'
counsel that the revenue Court held in suit
No.458/2005 laid purportedly by Shobharam
by its judgment and Decree dated 17.5.2008

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that Duli Chand had gone into adoption to
one Kalyan Bux is of no avail as no
Judgment was filed or its contents specific
to the assertion brought to the notice of
the SDO or for that matter the Board. No
such Judgment has also been brought to the
notice of this Court.

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As against the failure of the

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plaintiffs' to discharge the burden of Duli
Chand's purported adopted by Kalyan Bux, the
defendant was ensconced as a recorded
khatedar as per khatedari's of Smvt. 2059-
2062 and Smvt. 2051-2055. He had no bother
to prove his adoption. But there was oral
evidence on record that following the death
of Kalyan Bux, Shobharam the defendant was
made to wear a 'Pagri' as a sign of being
Kalyan Bux's successor in the presence of
Kalyan Bux's widow Sita Bai. This was
admitted by Santosh Bai one of the
plaintiffs in her testimony before the SDO.
Further mutation in the defendant favour had

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been made as early as on 20.6.1992 as
co-khatedar along-with Sita Bai. Kalyan
Bux's widow without any demur. Aside of the
above the defendant was a recorded khatedar.
He could only be displaced by a cogent case

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based on evidence of probative worth. This
the plaintiffs failed to do. The SDO rightly
held so and dismissed the suit. The RAA's
unjustified reversal has been rightly
corrected by the Board.

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In my considered opinion in the
facts of the case, there is no ex-facie
error apparent on the face of the judgment
and decree dated 2.4.2014 passed by the
Board upholding the judgment of the SDO
passed on 19.8.2009 and setting aside the
order of the RAA passed on 25.3.2011. Nor
can any perversity or misdirection in law be
attributed thereto. The burden was on the
plaintiffs in their suit and they failed to
discharge it on the foundational issue of
their father's Duli Chand's adoption by
Kalyan Bux.

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I find no force in the petition.
Dismissed.

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(Alok Sharma) J

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Sharma NK

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“All corrections made in the judgment/order have been
incorporated in the judgment/order being emailed.”

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NK Sharma, Sr.P.A

Badri Bai and Anr. v. B O R Ajmer and Ors.

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Badri Bai and Anr. v. B O R Ajmer and Ors.

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