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Rahim Bux v/s Board of Revenue & Others

    Civil Writ Petition No. 7659 of 2011

    Decided On, 11 October 2011

    At, High Court of Rajasthan

    By, THE HONOURABLE MR. JUSTICE DINESH MAHESHWARI

    For the Petitioner: Sunil Joshi, Advocate. For the Respondents: O.P. Joshi, Advocate.



Judgment Text

Dinesh Maheshwari, J.

1. By way of this writ petition, the petitioner Rahim Bux son of Ali Bux, one of the defendants in the revenue suit for division of holdings and perpetual injunction as filed by the plaintiff Jabra @ Jahurdeen son of Ali Bux (respondent No. 4 herein), seeks to question the judgment and decree dated 20.07.2011 whereby the Board of Revenue for Rajasthan, Ajmer ('the Board'/'the Board of Revenue') has dismissed the second appeal (No. TA/6/2005/Nagaur) preferred by the contesting defendants and has affirmed the judgment and decree dated 17.12.2004 as passed by the Revenue Appellate Authority, Nagaur ('the RAA') in Appeal No. 29/2004. By the said judgment and decree dated 17.12.2004, the RAA had decreed the suit while allowing the appeal preferred by the plaintiff-respondent No. 4 and while reversing the judgment and decree dated 23.02.2004 as passed by the Sub-Divisional Officer, Degana ('the SDO'/the Trial Court) in Revenue Suit No. 123/2002.

2. Put in brief, the relevant facts and the background aspects are as follows: The matter arises out of the revenue suit filed by the plaintiff-respondent No. 4 Jabra @ Jahurdeen under Sections 53 and 188 of the Rajasthan Tenancy Act, 1955 ('the Act') seeking division of holdings and perpetual injunction with the submissions that the parcels of agricultural land comprised in khasra Nos. 433, 436, 438, 447 and 575/2/1 at village Dagawas, tehsil Merta were the joint holdings with himself and defendants Nos. 1 to 5 and 7 being the co-tenants. The parties are related through the common predecessor Ali Bux son of Ahmed who was recorded as the khadetar in relation to the land in question. Ali Bux had four sons: Fazal, Gafoor, Jabra @ Jahurdeen (plaintiff respondent No. 4), and Rahim Bux (defendant No. 5-petitioner)

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. The defendants Nos. 1 and 2, Hussain and Iqbal are the sons of Fazal; and the defendants Nos. 3 and 4, Ibrahim and Shakoor are the sons of Gafoor whereas the defendant No. 7 is the widow of Gafoor. The defendants Nos. 8 and 9 Gariba Ram and Om Prakash are said to be the transferees of a part of the land in question from the petitioner Rahim Bux and the heirs of Gafoor. It appears that the land in question stood recorded in the name of the defendants at the time of filing of the suit for division and injunction.

3. It was contended by the plaintiff in the suit aforesaid that he was having 1/4 the share in the land in question and was entitled to seek division of holdings with his separate share; and to have the defendants restrained from alienating the land belonging to him and from interfering with his possession.

4. It appears that the defendant No.1 in the suit, Hussain son of Fazal, filed a written statement admitting the claim of the plaintiff in relation to the land comprised in khasra Nos. 433, 436, 438 and 447 but asserted his own right over the land of khasra No. 575/2/1. On the other hand, the petitioner Rahim Bux (defendant No. 5) filed a joint written statement with Ibrahim and Shakoor (defendants Nos. 3 and 4) with the submissions, inter alia, that earlier, the joint holdings also consisted of the land comprised in khasra Nos. 694 and 695 admeasuring 26 bighas and 11 biswas, which was handed over by Ali Bux to the plaintiff Jabra @ Jahurdeen and the land comprised in khasra Nos. 436, 438 and 447 was handed over to the defendant Rahim Bux. It was also submitted that even during the lifetime of Ali Bux, the plaintiff sold the land of khasra Nos. 694 and 695 and settled at Merta but was now seeking to claim the share in the remaining land only for his name having occurred in the revenue records in succession. The contesting defendants also alleged that late Shri Ali Bux carried out the division of the entire holdings on 12.12.1950; and the documents in that regard had been referred as Ex. A21/1 and Ex.A2/1. The defendants further asserted that the rights had also crystallized in them for adverse possession. The plaintiff filed a replication with the assertions that the alleged partition deed dated 12.12.1950 was a fabricated document; and that the land of khasra No. 575/2/1 was also of the joint khatedari and he was having the rights therein too.

5. The learned Trial Court framed the following issues for determination of the questions arising in the matter:-

"LANGUAGE"

6. After taking the evidence and hearing the parties, the learned Trial Court proceeded with determination of the questions involved in the case in its judgment dated 23.02.2004. In relation to issue No. 1, the learned Trial Court though found the name of the respective parties occurring in the revenue record and thus, held that the plaintiff had been able to prove the record part of the matter but then, held that the plaintiff had not been able to adduce any evidence about his possession. In issue No. 2, the learned Trial Court accepted the case of the defendants with the observations that Ali Bux, the predecessor of the parties, carried out partition on 12.12.1950 and the scribes of the deed affirmed the same. The learned Trial Court also referred to the submissions on behalf of the defendants that it were a 30 years old document of family settlement not requiring registration and observed that the partition having been affected 54 years back, the same was to be recognized despite being unregistered. With these observations, the learned Trial Court decided issue No. 2 in favour of the defendants. The learned Trial Court, of course, decided issue No. 3 against the defendants for the name of the plaintiff being recorded in the revenue records. In issue No. 4 relating to the question if the plaintiff was out of possession, the learned Trial Court observed that the defendants had failed to establish the same for not producing any copy of the girdawari. In issue No. 5, the learned Trial Court observed that the issue was partly proved with oral evidence and bigodi receipts. The learned Trial Court decided issue No. 6 against the defendants with the observations that the suit for division of holdings was not barred by limitation. The learned Trial Court, thereafter, made further observations on the contentions of the parties regarding previous partition and came to the conclusion that the partition had already taken place and the plaintiff had been given his share but he was claiming further division only for his name having occurred in the revenue records. With such a discussion and observations, the learned Trial Court formed the opinion that the suit was required to be dismissed and, accordingly, dismissed the same.

7. Aggrieved by the judgment and decree so passed by the Sub-Divisional Officer, Degana, the plaintiff preferred an appeal that came to be allowed by the Revenue Appellate Authority, Nagaur on 17.12.2004. The learned RAA referred to the material on record and so far the land of khasra Nos. 694 and 695 was concerned, found that the same was sold by Ali Bux on 18.08.1966 to Lala Puna Jat as being the land in his cultivatory possession. The learned RAA also indicated towards stark contradictions in the findings of the learned Trial Court in relation to issues Nos. 1, 4 and 5 and observed as under:-

"LANGUAGE"

8. In relation to the alleged partition of the year 1950, the learned RAA rejected the case of the defendants for want of registered document and also with the finding that the alleged partition was never acted upon. The learned RAA observed in this regard as under:-

"LANGUAGE"

9. As a consequence of the findings aforesaid, the learned RAA allowed the appeal, set aside the judgment and decree of the Trial Court, and issued the preliminary decree for division of holdings.

10. Seeking to question the judgment and decree so passed by the learned Revenue Appellate Authority, Nagaur, the present petitioner Rahim Bux, alongwith the defendant No. 3 Ibrahim and the defendant No. 4 Shakoor, filed a second appeal before the Board of Revenue that has been dismissed by the impugned judgment dated 20.07.2011.

11. From the observations made in the impugned judgment dated 20.07.2011, it appears that the appeal was ultimately prosecuted only on behalf of the appellant No. 1 Ibrahim. Be that as it may, the submissions in the appeal in challenge to the judgment and decree passed by the RAA were that the first Appellate Court committed illegality in not recording separate decision on every issue and in not following the requirements of Order XLI Rule 31 of the Code of Civil Procedure. It was also contended that the first Appellate Court has not recorded any finding against the reasoning of the learned Trial Court. It was further submitted that the decision of the learned Trial Court being in conformity with the evidence on record, the first Appellate Court had erred in allowing the appeal

12. The learned Division Bench of the Board of Revenue took into comprehension all the facts and circumstances of the case and succinctly stated the questions calling for determination; and its findings and reasons for not interfering with the decision of the RAA in the following manner:-

"LANGUAGE"

As a result of the aforesaid, the Board of Revenue dismissed the second appeal by the impugned judgment dated 20.07.2011.

13. Questioning the judgment and decreed so passed by the RAA and its affirmation by the Board of Revenue, the learned counsel for the petitioner has strenuously argued thus: that the impugned judgments suffer from errors apparent on the face of the record; that the RAA having totally failed to adhere to the mandatory requirements of the provisions of Order XLI Rule 31 CPC and having failed to record the reasons for setting aside the judgment of the learned Trial Court, the impugned judgment ought to have been set aside by the Board; that the partition having already taken place in the year 1950 and proved by the documents more than 30 years old, the Board of Revenue and the RAA have erred in recording the findings otherwise in their impugned judgments; and that even the unregistered document is admissible in evidence for collateral purposes. The learned counsel has referred to and relied upon the decision of the Honble Madras High Court in C.S.Kumaraswami Gounder v. Aravagiri Gounder & Anr., AIR 1974 Madras 239.

14. The learned counsel for the petitioner further contended that the SDO had rightly dismissed the suit after finding that the partition had taken place and the plaintiff had been given his share in the land comprised in khasra Nos. 694 and 695. The learned counsel yet further submitted that there being overwhelming evidence of exclusive possession of the defendants and there being no evidence of the possession of the plaintiff, the learned RAA had been in error in reversing the considered judgment of the Trial Court.

15. Per contra, the learned counsel appearing for the plaintiff respondent No. 4 has duly supported the orders impugned and contended that the plaintiff, being a recorded co-tenant, has rightly filed the suit for division of joint holdings and the same has rightly been decreed; and such a decree passed by the revenue authorities calls for no interference.

16. After having given a thoughtful consideration to the submissions made and after having gone through the material placed on record, this Court is unable to find any case of jurisdictional error as to consider interference in supervisory jurisdiction.

17. True it is that in the judgment dated 17.12.2004, the Revenue Appellate Authority, Nagaur, while dealing with an appeal arising out of the judgment and decree of the learned Trial Court in the suit for division of holdings and injunction did not spell out the distinct points for determination and as such, the decision cannot be said to be strictly in conformity with Order XLI Rule 31 CPC but then, it is evident from the said judgment dated 17.12.2004 that the RAA did properly appreciate the case, applied its mind to the core questions calling for determination, and decided the same with reference to the evidence on record and the relevant applicable principles of law. The shortcoming in the form and frame of the judgment of the RAA does not, in any manner, affect the merits of the decision and the Board of Revenue cannot be said to have committed any error in affirming the same.

18. In fact, the Board of Revenue has taken care to methodically summarise the core questions and to deal with the findings of the subordinate authorities aptly and appropriately as is evident from the relevant portion of the judgment of the Board of Revenue reproduced hereinabove. In this regard, per force, this Court is constrained to observe that though the learned Trial Court in its judgment dated 23.02.2004 purportedly dealt with the matter issue-wise but the discussion on the issues had been, to say the very least, rather cursory and uncertain, apart from being wanting in application of the relevant principles. Moreover, the questioned judgment of the learned Trial Court even carried contradictory findings regarding possession in issue No.1 and issue No.4. In sum and substance, the emphasis of the learned Trial Court was on the alleged division dated 12.12.1950 and it was assumed that the document in that regard being more than 30 years old, the factum of division was a conclusion foregone; and it was further assumed that the land of Khasra No.694 and 695 was allotted in such division to the plaintiff and the proceeds on its sale had gone to the plaintiff. In fact, such alleged division had been the basic reason of rejection of claim of the plaintiff by the learned Trial Court though he was shown to be recorded as co-tenant in relation to the land in question in the revenue records.

19. In appeal, the learned RAA properly dealt with the said core aspect of the stand of the contesting defendants about the alleged division in the lifetime of Ali Bux in the year 1950 and assigned valid reasons for discarding the suggestions of the defendants. The learned RAA in the first place pointed out inadmissibility of the document in question for want of registration and then, also pointed out the specific facts and circumstances operating against the suggestions of the defendants including the fundamental and rather clinching aspect that Ali Bux himself sold the land of Khasra Nos. 694 and 695 in the year 1966 as the khatedar and as the person in cultivatory possession thereof. Such a sale could not have been made by Ali Bux if there had been a division whereby the land of Khasra Nos. 694 and 695 had been assigned and allotted to the plaintiff Jabra @ Jahurdeen. The learned RAA also pointed out that the recitals as made in the other settlement deeds of the year 1997 and 2001 indicated that the alleged division of the year 1950 was never acted upon. The learned RAA also observed that reliance upon the oral statements was not justified over and above the documentary evidence. Though it is suggested in this writ petition that the RAA only referred to different transactions but not recorded any specific finding in that respect but such suggestions do not appear correct on a reading of the judgment of the RAA as a whole and more particularly the passage reproduced hereinabove.

20. So far the suggestion about admissibility of the alleged document of division for collateral purposes is concerned, in the present case, when division itself was sought to be suggested with reference to the document in question, there was nothing of the so-called collateral purpose for which the document was to be admitted in evidence. This apart, per Section 90 of the Evidence Act, 1872, what the Court may presume about a thirty years old document, when produced from a proper custody, is that that the signatures and every other part thereof, which purports to be in the handwriting of a particular person, is in that persons handwriting and that the document was duly executed and attested by the person by whom it purports to be executed and attested. There is no presumption about the legal effect that the document purports to have; nor its execution could be said to be proved if such document has never been acted upon. In this case, the RAA and the Board of Revenue have clearly pointed out that the said document, related to the year 1950, was never acted upon; no attempt was made to get the revenue record altered on its basis; and then, as noticed above, as late as in the year 1966, Ali Bux himself sold the land of Khasra Nos. 694 and 695. The learned RAA has pointed out that further dealings of the parties, including the settlement deeds of the years 1997 and 2001 also operate against the suggestions about division of holdings in the year 1950. In the given fact situation, the decision in C.S.Kumaraswami Gounder (supra) is of no help to the petitioner.

21. As noticed from the observations and findings of the RAA, and this Court finds no error or illegality therein, the very suggestion about the validity and operation of the document in question stood contradicted by the acts and actions of the parties; most relevant of which had been that as late as in the year 1966, Ali Bux himself sold the said land of Khasra No. 694 and 695 as his khatedari land and as being in his cultivatory possession. The suggestions about division having already taken place in the year 1950 was required to be rejected and the RAA and then, the Board cannot be said to have committed any illegality in doing so.

22. When the assertion about past division was the basic defence and the same stood rejected; and when other suggestions about adverse possession were not established, there was no escape from a decree for division of holdings, when claimed by a co-tenant and when there was no impediment thereto. The necessary consequence of the findings on the material issues was that the plaintiff was entitled to the decree prayed for; and the RAA and the Board have not committed any error or illegality in granting the same.

23. In the given set of facts and circumstances, no case of jurisdictional error is made out in this matter so as to call for interference by this Court in the supervisory jurisdiction under Article 227 of the Constitution of India.

As a result of the aforesaid, this petition fails and is, therefore, dismissed.

Petition dismissed.
O R