Dismissed

Manohar Lal and Ors. v. Bor and Ors.

Rajasthan HC14 Nov 2014CW/5855/1997

Case brief

AI extract

What is this about?

A writ petition challenged a Board of Revenue order granting partition of agricultural land. The court found revenue records proved joint khatedari and rejected the defense of adverse possession and res judicata, upholding the lower court's decree for partition and dismissing the petition.

What did the court decide?

Petition dismissed; Judgment of Board of Revenue dated 23.07.1997 upheld; Judgment of Revenue Appellate Authority set aside.

Manohar Lal and Ors. Vs Bor and Ors. — Partition | Rajasthan HC (2014)

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S.B. CIVIL WRIT PETITION NO.5855/1997

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(1)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR

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O R D E R IN S.B. CIVIL WRIT PETITION NO.5855/1997

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Manohar Lal (dead) through LRs. & Anr. Vs.

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The Board of Revenue & Ors.

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Date of Order : November 14^th , 2014 HON'BLE MR. JUSTICE ALOK SHARMA

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Mr. Prahlad Sharma, for the petitioners-defendants. Mr. T.P. Sharma, for the respondent-plaintiff.

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BY THE COURT

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This petition under Article 226 of the Constitution of India has been filed impugning the judgment and decree dated 23.07.1997, passed by the Board of Revenue Rajasthan, Ajmer (hereinafter 'the Board') setting aside the judgment and decree dated 24.08.1993, passed by the Revenue Appellate Authority, Alwar (hereinafter 'RAA') and upholding the judgment and decree dated 09.01.1986, passed by the Assistant Collector, Rajgarh, Laxmangarh, District Alwar whereby the respondentplaintiff's suit for declaration of khatedari rights and partition in respect of 1/4 of agricultural land ad measuring 21 bigha 7 biswa in khasra Nos.223, 225, 226, 227, 333, 1020, 1021, 1022 at village Ganduda, Tehsil Laxmangarh, District Alwar was decreed.

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The facts of the case are that the respondent-plaintiff (hereinafter 'the plaintiff') filed a suit inter alia against the petitioners-defendants (hereinafter 'the defendants') under

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S.B. CIVIL WRIT PETITION NO.5855/1997

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(2)

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Section 53 of the Rajasthan Tenancy Act, 1955 (hereinafter 'the Act of 1955') for partition of 21 bigha 7 biswa land in the khasras detailed hereinabove claiming 1/4 share therein. The foundation of the plaintiff's suit was that the suit land was ancestral and as the successor of the erstwhile khatedars, he is entitled to 1/4 share therein. The suit was opposed by the defendants. They filed written statement on 13.02.1976 denying the allegation of the suit land being in joint khatedari in which the plaintiff had no share at all and stated that the plaintiff was not entitled to partition of the suit land on any ground. It was further stated that the plaintiff was never in possession of the suit land of which he claimed partition as joint khatedar and had never at any point of time paid rent in respect thereof. The sole and exclusive possession of the defendants over the suit land was asserted. It was further submitted that the ancestors of the plaintiff and the defendants had entered into an oral partition in respect of ancestral land over 100 years ago consequent to which the plaintiff and his brother one Laxman, who was impleaded as a proforma defendant in the suit, had come into khatedari of 8 bigha 10 biswa of agricultural land through their erstwhile ancestors.

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On the basis of pleadings, the Assistant Collector framed six issues, which are as under :

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(1) आया आराजी ख.नं. 223, 225, 226, 227, 333, 1020, 1021, 1022 कूल 8 िकता 21/2 वाके ग�डूडा फरीकेन की मु�तरका खातेदारी की आराजी है | - वादी

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S.B. CIVIL WRIT PETITION NO.5855/1997

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(3)

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(2) आया उ्व आराजी म� वादी का 1/4 िह. है और ्ऺितवादीगण उसके उ्व आराजी म� मु�तरका क�जा म� मजाहमत करते है | - वादी

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(3) आया वादी अपने िह�से की आराजी का तकसीम कराकर उस पर क�जा ्ऺा� करने का मु�तहक है | - वादी

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(4) आया आराजी मुतनषा का वादी तथा ्ऺ ितवादीगण के बुजुग� के ितवादीगण को

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दरिमयान बंटवारा हो गया है तथा यह आराजी ्ऺ िमली इसिलए अब तथा समाधान का ्ऺ� नहीं उठता है | - ्ऺितवादी

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(5) आया तहसीलदार ल�मणग्ढ मुकदम� म� ज�री फरीक है | - ्ऺितवादी

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(6) दादरसी क्या होगी |

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On the basis of the evidence both oral and documentary laid by the parties, the Assistant Collector held that on the basis of revenue records presented before him as also the admission of the State Government which had been impleaded as defendant in the suit, the suit land was standing in the joint names of the plaintiff, the defendants and others and was thus in their joint khatedari. It was held that in view of the joint khatedari of the plaintiff and the defendants as per revenue records, mere possession of the defendants alone over the suit land, if at all, could not entail the ouster and negation of the plaintiff's right as khatedar and claim to partition of the suit land as per the share coming to his account i.e. 1/4. It was held that the plaintiff was therefore entitled to a decree of partition. The Assistant Collector found that the defendants had failed to produce any oral or documentary evidence to establish that the erstwhile ancestors of the plaintiff, the defendants or others had entered into an oral partition in respect of the suit land over 100

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S.B. CIVIL WRIT PETITION NO.5855/1997

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(4)

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years ago. This conclusion was buttressed by the fact that no entries consequent to the purported oral partition were made in the revenue records as they would indeed have been in the event of an oral partition as propounded by the defendants in fact had at all taken place. It was held that the State having been impleaded as defendant in the suit for partition through the Collector, Alwar, the defence of the defendants that the suit be dismissed for non-impleadment of the State was untenable and of no avail. More so when in the written statement filed on behalf of the State, the Nayab Tehsildar had admitted to the plaintiff's joint khatedari with the defendants and his right to partition and recording of 1/4 share of the suit land in his own name as khatedar thereof. The Assistant Collector also noted that earlier a suit filed by the plaintiff for injunction against the defendants for protection of his possession of the suit land to the extent of his rights therein had been decreed by the revenue court on 30.05.1978, whereagainst the first and second appeals filed by the defendants before the RAA and the Board had failed on 04.08.1978 and 27.08.1984 respectively. The said concurrent judgments in the earlier proceedings at the instance of the plaintiff in his suit for permanent injunction were before the trial court and considered. In these circumstances, the suit of the plaintiff for partition and recording of 1/4 share of the suit land in his khatedari was decreed.

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An appeal against the judgment and decree dated

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S.B. CIVIL WRIT PETITION NO.5855/1997

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(5)

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09.01.1986 followed. The RAA came to allow the appeal vide judgment and decree dated 24.08.1993. The judgment and decree of the Assistant Collector was set aside and the plaintiff's suit for partition under Section 53 of the Act dismissed. This time around, the plaintiff aggrieved of the judgment and decree dated 24.08.1993, passed by the RAA approached the Board by way of a second appeal. As recorded hereinabove, the Board under its judgment and decree dated 23.07.1997 set aside the judgment and decree dated 24.08.1993, passed by the RAA and restored the judgment and decree dated 09.01.1986 passed by the Assistant Collector, whereby the plaintiff's suit for partition was decreed. Hence this petition.

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Mr. Prahlad Sharma, appearing for the defendants has submitted that the Board as also the Assistant Collector erred in failing to consider that the ancestors of the plaintiff and the defendants had entered into an oral partition over 100 years ago consequent to which the plaintiff had no joint khatedari in the suit land and consequently could not lay a claim for partition thereof. It was submitted that the recording of the plaintiff's name as a joint khatedar of the suit land in Samvat 2028 was erroneous and legal proceedings there-against had been taken by the defendants. Counsel submitted that during the pendency of the legal proceedings against the entries in the revenue records pertaining to Samvat 2028 showing the plaintiff as the joint khatedar of the suit land, the Assistant Collector as also the

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S.B. CIVIL WRIT PETITION NO.5855/1997

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(6)

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Board ought not to have decreed the plaintiff's suit solely on the basis of the aforesaid entries in the revenue records. It was

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further submitted that the Board committed a gross legal error in overturning the finding of the RAA that the suit land was a Mandir Maufi land and could not therefore have been partitioned. It was finally submitted that an earlier suit of permanent injunction having been filed by the plaintiff and decreed in his favour by the revenue court, a subsequent suit for partition under Section 53 of the Act of 1955 by the plaintiff was hit by res judicata and ought to have been dismissed on this count alone.

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Mr. T.P. Sharma, appearing for the plaintiff has however submitted that the judgment and decree passed by the Assistant Collector as upheld by the Board while setting aside a contrary view of the RAA is wholly legal in the context of the evidence on record. Counsel submitted that the Board of Revenue rightly considered that as per the land revenue records, the suit land was in the joint khatedari of the plaintiff and the defendants and the plaintiff was entitled to a decree of partition in respect thereof. Counsel further submitted that even though the defendants had taken a defence of an earlier purported oral partition over 100 years ago between the ancestors of the plaintiff and the defendants, there was neither any oral or documentary evidence therefor nor was the purported oral partition reflected from the revenue records. It was further

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S.B. CIVIL WRIT PETITION NO.5855/1997

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(7)

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submitted that the Board has rightly taken into consideration the fact that an earlier suit under Section 188 of the Act of 1955 was

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filed by the plaintiff against the defendants wherein the same objection with regard to a purported oral partition over 100 years ago between the ancestors of the plaintiff and the defendant had been taken by the defendants, but negated by the revenue court in its judgment and decree dated 30.05.1978 in favour of the plaintiff. That judgment and decree of the revenue court in the plaintiff's suit for permanent injunction earlier filed was upheld both by the RAA on 04.08.1978 and thereafter by the Board on 27.08.1984. It was submitted that the legal position is quite clear that where the land is in joint khatedari, a co-tenant in actual cultivatory possession, assuming so without admitting it, cannot by that fact alone oust another co-tenant or resist a suit for partition where joint khatedari is recorded in the revenue records. Counsel further submitted that even otherwise on the question of possession, the defendants had no case as in the earlier suit filed by the plaintiff under Section 188 of the Act of 1955, it had been held that the plaintiff's possession of the suit land to the extent it was in his possession as a co-khatedar was not to be disturbed by the defendants. Counsel further submitted that aside of the aforesaid, a challenge to the judgment of the Board of Revenue must necessarily relates to Article 227 of the Constitution of India and not to Article 226 of the Constitution of India under which the petition has purportedly been filed. This

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S.B. CIVIL WRIT PETITION NO.5855/1997

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(8)

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Court has limited jurisdiction and cannot sit as if in appeal to reappreciate the evidence considered by the Board of Revenue as the final statutory court and take a view independent of the appreciation of evidence by it. It was submitted that both under Article 226 and 227 of the Constitution of India, a writ court can interfere with the conclusions of the courts below only if such conclusions are perverse to the evidence on record or otherwise evidently misdirected in law clearly making out an error apparent on the face of the record. To buttress this contention, reliance has been placed on the judgment of the Hon'ble Supreme Court in the case of Management of Madurantakam Coop. Sugar Miils Ltd. Vs. S. Viswanathan [(2005) 3 SCC 193] . It was submitted that in this view of the matter, the writ petition be dismissed.

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Heard the counsel for the parties. Perused the impugned judgment and decree dated 23.07.1997, passed by the Board as also the judgment and decree dated 24.08.1993, passed by the RAA and the judgment and decree dated 09.01.1986, passed by the Assistant Collector.

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The limitations of a writ court addressing a challenge to the judgment / order of a court below either in a petition under Article 226 or under Article 227 of the Constitution of India for that matter, are well known. In Mahavir Singh Vs. Khiali Ram & Ors. [(2009) 3 SCC 439] the Hon'ble Supreme Court has held that a writ court under Article 226 of the

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S.B. CIVIL WRIT PETITION NO.5855/1997

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(9)

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Constitution of India concerns itself with the decision making process and not the decision itself. In Raja Jagdambika Pratap Narain Singh Vs. Central Board of Direct Taxes & Ors. [(1975) 4 SCC 578] the Hon'ble Supreme Court has held that the jurisdiction under Article 226 of the Constitution of India should be exercised by the High Courts where there is an apparent violation of statutory duty. The Hon'ble Apex Court in State of A.P. Vs. P.V. Hanumantha Rao (dead) through LRs. & Anr. [(2003) 10 SCC 121] has held that the said powers can be exercised where legal provisions are overlooked by the court or the tribunal / court below or where the impugned judgment is vitiated by mis-application of legal provisions resulting in an error apparent on the face of the record. In Jai Singh & Ors. Vs. Municipal Corporation of Delhi & Anr. [(2010) 9 SCC 385] the Hon'ble Apex Court has held that such power should be exercised where judgments under challenge evidence grave dereliction of the duty or flagrant abuse of the foundational principles of law is made out. Then alone a writ court should interfere. In Bandaru Satyanarayana Vs. Imandi Anasuya & Ors. [(2011) 12 SCC 650] the Hon'ble Supreme Court has held that even though power of the court under Article 226 of the Constitution of India is unfettered, yet it is subject to a high decree of judicial discipline, is wholly discretionary and interference should be kept at the minimum.

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A bare look at the facts of the present case indicates

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S.B. CIVIL WRIT PETITION NO.5855/1997 (10)

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that the plaintiff's suit for partition has been decreed fundamentally on the basis of land revenue records indicating that the plaintiff was the joint khatedar in the suit land. The issue of the plaintiff's exclusion from his rights as joint khatedar merely by reference to the defendants' alleged long possession thereof solely held, as also a joint khatedar, was a non-sequitur in view of the established legal position that long possession by itself is not a factor to oust a co-sharer. More positive action / evidence at the hands of the co-sharer seeking adverse possession of land in joint khatedari is required and it is required to be shown that the joint khatedar / co-owner had specifically set up an independent, adverse and hostile title as against the other co-owner publically for over a period of 12 years. It has been held by the Hon'ble Supreme Court in Govindammal Vs. R. Perumal Chettiar & Ors. [(2006) 11 SCC 600] that for a plea of adverse possession of the co-owner it should be shown that the possession was hostile following a clear denial / repudiation of the title / rights of the other co-owners. The fact of repudiation of a co-owner's title is required to be brought on record by the co-owner claiming adverse possession before the court and failure to do so entails a dismissal of the plea of an ouster of one co-sharer and adverse possession of another. In Syed Shah Ghulam Ghouse Mohiuddin & Ors. Vs. Syed Shah Ahmed Mohiuddin Kamisul Quadri (died) by LRs. & Ors. [(1971) 1 SCC 597] , the Hon'ble Supreme Court has held

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S.B. CIVIL WRIT PETITION NO.5855/1997

¶55

(11)

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that the possession of one co-owner in law is possession on behalf of co-owner. Evidence of hostile exclusion of the co-owner for the statutory period after repudiation of other co-owner's title is essential for setting up a case on the basis of adverse possession.

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In the instant case, there was no evidence on record that the defendants had set up a case even of adverse possession or laid any evidence in support thereto before the trial court. The only case of the defendants was of long possession. To my mind such a stand was of no avail for the exclusion of the rights of a co-owner to the khatedari land as evident from revenue records. I also do not find any force in the contention of the counsel for the defendants that the subsequent suit for partition filed under Section 53 of the Act of 1955 was liable to be dismissed on the ground of res judicata in view of the fact that the plaintiff had earlier taken proceedings against the defendants under Section 188 of the Act of 1955 and sought permanent injunction against the defendants interfering with his possession over the suit land. A proceeding under Section 188 of the Act of 1955 is wholly distinct and separate from one under Section 53 thereof. One relates to a permanent injunction and the other relates to partition. To set up a case of res judicata or even constructive res judicata, it was for the defendants to resort to procedure required in a defence to a suit based on res judicata. The Hon'ble Supreme Court in Ramesh Chandra Sankla & Ors. Vs.

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S.B. CIVIL WRIT PETITION NO.5855/1997

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(12)

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Vikram Cement & Ors. [(2008) 14 SCC 58] has held as under

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¶62

“A question whether a petition is barred by res judicata or under Rule 4 of Order 23 of the Code is not a “pure” question of law. It is a question of fact or at any rate, a mixed question of law and fact. In absence of pleadings and necessary materials in support of such plea, petitions cannot be dismissed on the bald assertion by a party that they were not maintainable.”

¶63

A similar view has been taken by the Hon'ble Supreme Court in the case of Ramchandra Dagdu Sonavane (dead) by LRs. & Ors. Vs. Vithu Hira Mahar (dead) By LRs. & Ors. [(2009) 10 SCC 273] .

¶64

It is thus evident that the burden was on the defendants in the plaintiff's suit for partition to establish that the issue of the ownership and the right to partition was set up, decided and argued in the plaintiff's earlier suit for grant of injunction under Section 188 of the Act of 1955 which was decreed on 30.05.1978. The Hon'ble Supreme Court has held that when title was not in issue in a suit for grant of injunction, a second suit claiming title was not hit by res judicata. In the instant case there was nothing on record to establish before the Assistant Collector or for that matter the RAA and the Board that the question of plaintiff's rights to partition as the joint khatedar of the suit land was in issue before the trial court in the earlier suit. The Hon'ble Supreme Court in Ramchandra Dagdu Sonavane (Supra) has held that it is one thing to say that a

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S.B. CIVIL WRIT PETITION NO.5855/1997

¶66

(13)

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plaintiff is in possession and therefore be protected as against the other and absolutely another thing to say that the plaintiff had the right to possess the suit land. Consequently where a suit for injunction is earlier filed, a suit for declaration subsequently filed would not be barred by the doctrine of res judicata under Section 11 of CPC.

¶68

The upshot of the aforesaid discussion is that the plaintiff's suit was based on joint khatedari in the revenue records. The defendants had not been able to establish an earlier oral partition 100 years or so ago between the ancestors of the plaintiff and the defendants. The plaintiff's suit for permanent injunction earlier filed under Section 188 of the Act of 1955 had been decreed by the competent court and upheld by the RAA and the Board. As against the aforesaid facts, the defendants had not been able to establish that they had come into absolute ownership of the land in the joint khatedari owing to adverse possession as they had failed to set up a case of the plaintiff's ouster and produce requisite evidence in respect thereof. In these circumstances, the Assistant Collector rightly concluded that the plaintiff was entitled to partition under Article 53 of the Act of 1955 and deserving of a decree in respect thereof. The RAA had misdirected itself in making out a completely new case in appeal and holding that the suit land was a mandir maufi land which could not be partitioned. This overlooked the fact that the suit land being mandir maufi land was not even a defence of the

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S.B. CIVIL WRIT PETITION NO.5855/1997

¶70

(14)

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defendants who had quite clearly and evidently laid claim to the suit land as being in their khatedari notwithstanding the fact that the revenue records pertaining to Samvat 2028 indicated the suit land to be in the joint khatedari inter alia of the plaintiff. In my considered view, in the overall facts of the case and in the context of the scope of writ jurisdiction of this Court both under Article 226 or under Article 227 of the Constitution of India limiting re-appreciation of evidence as if in appeal, there is no scope for interference with the judgment and decree dated 23.07.1997, passed by the Board. The judgment and decree dated 24.08.1993, passed by RAA was rightly set aside and the judgment and decree dated 09.01.1986, passed by the Assistant Collector correctly restored.

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The petition is liable to be dismissed. So dismissed.

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(ALOK SHARMA), J

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MS/-

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All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.- Manoj Solanki, P.A.

Manohar Lal and Ors. v. Bor and Ors.

Case brief

What is this about?

What did the court decide?

Manohar Lal and Ors. v. Bor and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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