RAMJILAL Vs. BOARD OF REVENUE

JUDGEMENT

(1.) THIS is an application under Article 226 of the Constitution of India. It is directed against the decision of the learned Members of the Board of Revenue Rajasthan passed in second appeal on 23rd December, 1961.

(2.) BRIEFLY stated, the facts giving rise to it are as follows:-The petitioner's father Gangasahai and one Pusharam, who were descendants of a common ancestor Bhudarmal, were Khatedars of khasra Nos. 765, 766, 769, 873, 874 and 946, in all measuring 13 bighas 2 biswas, situated In village Giglana, Tehsil Behror. Gangashai died in the life-time of Pusharam. On Pusha Ram's death in March 1945, respondent No. 2 Kirparam, who claimed to be his adopted son, got the said land mutated in his name. The petitioner contested the mutation proceedings commenced at the instance of Kirparam, but he was not successful. In the meanwhile, the landlords of the said fields took possession of them and so Kirparam had to file a suit for recovery of the possession of the said fields against the landlords in the Court of the assistant Collector, Behror on 5th September, 1945. He obtained a decree (Ex. 2) for possession from the said Court on 18th February, 1943. It was, however, on 11th March, 1949 that he could obtain actual possession of the said fields according to the said decree.

(3.) ON 14th August, 1946, the petitioner brought a civil suit (Appendix A) for a declaration that Kirparam's alleged adoption by Pusharam as a son was invalid and that the adoption-deed, which was executed on 19th June, 1941 and registered on 28th August, 1941 should be cancelled. The trial court dismissed the suit on 12th november 1951, but, on appeal, the Civil Judge, Alwar, reversed that judgment and decreed the suit holding that Kirparatn's adoption was invalid and that the said adoption-deed was null, void and ineffectual against the petitioner. Respondent No. 2 went in appeal to the High Court, but that appeal was dismissed on 9th September, 1959. After his success in the Court of Civil Judge, Alwar, the petitioner filed a suit for possession of the said field against respondent No. 2 in the Court of Assistant collector, Bahror, on 1st July, 1954, Kirparam contested the suit on several grounds. He went to the extent of saying that Ramjilal was not the son of gangasahai. The revenue court framed as many as twelve issues and after examining the evidence of both the parties, decreed the petitioner's suit for possession in his favour. Aggrieved by that judgment dated 22nd August, 1957, respondent No. 2 filed an appeal which was heard by the Additional Commissioner, Jaipur. The appellate court dismissed the appeal on 16th December, 1959. Respondent No. 2 thereupon filed a second appeal in the Board of Revenue. He raised twofold objections. His first contention was that the suit was time-barred and his second contention was that the suit was not maintainable on account of the provisions of Order 2, Rule 2 of the Code of Civil Procedure. His first contention was repelled by the learned Members of the Board of Revenue but as regards the second objection, it was held that when the petitioner brought his first suit for declaration and cancellation of the adoption-dead in the civil court, he should have also asked for the relief about the possession of the property, that the civil court was competent to entertain his suit for possession of the agricultural property at that time, that even though defendant Kirparam was not in actual possession of the disputed property when the suit was filed, the plaintiff could have impleaded the landlords who had dispossessed Kirparam and that since the plaintiff omitted to ask for the relief of possession without the leave of the court, he was debarred from bringing the second suit which was filed by him in the revenue court on 1st July, 1954. On this ground, the Second appeal of respondent No. 2 was allowed, the judgment and decree of both the courts below were set aside and the petitioner's suit was dismissed. It is the correctness of this judgment dated 23rd December, 1961 which is sought to be challenged by this application.