SURYA PRAKASH Vs. SMT. SUSHILA DEVI AND ORS.

JUDGEMENT

(1.) THIS petition has been filed impugning the judgment dt. 18.10.2011 passed by the Board of Revenue, whereunder the respondent -plaintiff (hereinafter "the plaintiff") Sushila Devi's appeal under Sec. 224 of the Rajasthan Tenancy Act has come to be allowed, setting aside the order dt. 19.11.2009 passed by the Revenue Appellate Authority and restoring the judgment and decree dt. 6.07.2009 passed by the Sub -Divisional Officer, Dudu, District Jaipur, whereby the suit of plaintiff Sushila Devi having been decreed, it was declared that the plaintiff Sushila Devi was half owner/khatedar of lands falling in Khatoni Nos. 292, 293 and 778 till then standing in the name of petitioner -defendant (hereinafter "the defendant") Surya Prakash. The facts of the case are that one Chauthmal had khatedari rights to an extent of 1/5th in the agricultural lands covered under Khatoni No. 292 ad measuring 35 bighas 13 biswas, Khatoni No. 293 ad measuring 10 biswas and Khatoni No. 778 ad measuring 14 bighas 19 biswas, all situate in village Dudu, district Jaipur. The plaintiff Sushila Devi was his natural daughter and the defendant, his adopted son. Following Chauthmal's death the agricultural lands falling in the share of Chauthmal came to be recorded in the name of the defendant Surya Prakash. The plaintiff Sushila Devi's case was that till about the year 1999 she continued to receive fair share of the produce of the aforesaid agricultural lands but on or about 14.7.1999 the defendant Surya Prakash refused to allow Sushila Devi, the plaintiff to have her name entered in the revenue records as successor to the estate of Chauthmal in equal measure with him. This refusal occasioned laying of a suit for declaration and permanent injunction by the plaintiff Sushila Devi against the defendant Surya Prakash before the Court of Sub -Divisional Officer, Dudu whereunder the plaintiff inter alia sought a declaration that she was half owner of the properties of her father to which Surya Prakash the defendant was claiming exclusive ownership.

(2.) THE Sub -Divisional Officer, Dudu in view of the absence of Surya Prakash in spite of service in the suit laid by Sushila Devi decreed the suit ex -parte as prayed on 24.9.1999. On proceedings taken by Surya Prakash, petitioner under Order 9 Rule 13 CPC the ex -parte judgment and decree dt. 24.9.1999 was set aside on or about 25.5.2006 and the matter remanded to the Sub -Divisional Officer, Dudu to be adjudicated after providing opportunity of filing the written statement and setting up defence to the suit as laid by Sushila Devi. A written statement at the instance of Surya Prakash came to be filed on or about 4.07.2006. In the said written statement, Surya Prakash denied the whole case set up by Sushila Devi and stated that the agricultural lands in his Khatoni Nos. 292, 293 and 778 were not ancestral but self acquired. It was stated that in fact Chauthmal was not entitled to any succession to the property of Ram Vilash, his father as he was given away by Ram Vilash in adoption. It was further submitted that Surya Prakash the defendant in the suit had not inherited any land from Chauthmal, consequent to which the plaintiff Sushila Devi's claim to half share of Chauthmal's property was absolutely unsustainable. It was further stated that the property in the name of the defendant Surya Prakash, specially in respect of Khatoni No. 778 had come to his share in pursuance to the judgment and decree dt. 24.11.1985 in a revenue suit bearing No. 236/1985 before the Assistant Collector, Sawai -Madhopur. The Sub -Divisional Office, Dudu framed 7 issues on the pleadings of the parties and on consideration of the documentary and oral evidence, came to a conclusion that the petitioner Surya Prakash the defendant in the suit had come into agricultural land falling in Khatoni Nos. 292, 293 and 778 as successor of the deceased Chauthmal, his adoptive father. It was found that the defendant's reliance on a purported adoption deed (whereby Chauthmal was stated to have gone in adoption and thus was allegedly no longer a member of the family of Ram Vilash and not entitled to any estates of Ram Vilash on the basis of the adoption deed, the original khatedari allegedly executed 70 years ago) was absolutely unreliable as neither the adoption deed was registered nor proved by any other evidence of any probative worth. The Sub -Divisional Officer came to a finding that DW 4 Satya Prakash who sought to prove the alleged giving away of Chauthmal by his father Ram Vilash about 70 years ago was in fact about 52 years of age and thus his evidence useless. The Sub -Divisional Officer also held that the case of the defendant that Chauthmal had sold his property to Dinesh Dutt for a sum of Rs. 5000/ - and was also otherwise thus denuded of his ownership with the consequence of no right inhering in his property (thus non existent) in the plaintiff Sushila Devi as his natural daughter, was also not of any probative worth inasmuch as the alleged sale by Chauthmal of immovable property for a sum of Rs. 5000/ - by Chauthmal on 8.6.1968 was neither stamped nor registered and was thus inadmissible in evidence. The trial Court thus concluded that the fact both of the alleged giving away of Chauthmal in adoption by Ram Vilash or of the sale of his entire estate by Chauthmal for sum of Rs. 5000/ - on 8.6.1968 was not proved by Surya Prakash defendant in the suit. The trial Court further recorded the fact that even otherwise the defendant Surya Prakash could not set up a case of Chauthmal not having any right in the agricultural lands comprised in Khatoni Nos. 292, 293 and 778 as son of Ram Vilash as Surya Prakash had himself succeeded to the immovable property in issue in the suit as the son and successor of Chauthmal, his adoptive father. The trial Court also negative the case of the defendant Surya Prakash that he had succeeded to the lands covered under Khatoni No. 778 on the basis of a decree dt. 24.11.1984 in revenue suit No. 236/85 by the Assistant Collector, Sawai Madhopur on the ground that the said suit was a partition suit laid by Surya Prakash as the successor of Chauthmal and the defendants therein were all descendants of the original khatedar Ram Vilash. In these circumstances, it was established before the Court that even the lands covered in Khatoni No. 778 came to the defendant as the adopted son of Chauthmal. In view of the aforesaid findings the Sub -Divisional Officer, Dudu vide his judgment and decree dt. 6.7.2009 decreed the suit of plaintiff Sushila Devi and directed that she be given half share in the agricultural lands standing to the name of the petitioner Surya Prakash in Khatoni Nos. 292, 293 and 778.

(3.) AGGRIEVED of the order dt. 19.11.2009 passed by the Revenue Appellate Authority, the plaintiff Sushila Devi laid a second appeal before the Board of Revenue. On consideration of the matter, vide judgment dt. 18.10.2011 the Board of Revenue set aside the judgment dt. 19.11.2009 passed by the Revenue Appellate Authority and restored the judgment and decree dt. 6.07.2009 passed by the Sub -Divisional Officer, Dudu. Hence the present petition.