CHHOTI Vs. BOARD OF REVENUE AND ORS.

JUDGEMENT

(1.) The present petition has been filed under Articles 226 and 227 of the Constitution of India to assail the order dated 10.11.1995 passed by the Revenue Appellate Authority and the order dated 21.7.2000 passed by the Board of Revenue, Rajasthan whereby mutation granted in favour of the petitioner on 19.10.1946 vide Entry No. 3223 and mutation dated 28.4.1941 granted in favour of Smt. Gaura, mother of the petitioner, vide Entry No. 2855 and mutation No. 1852 granted in the year 1937 in favour of Madho, father of the petitioner, was set aside. The order passed by the Revenue Appellate Authority was modified by the Board of Revenue.

(2.) On 16.9.1974 Bishna, respondent No. 4, had filed a suit before the Assistant Collector, Baran praying that he be declared as cultivating khatedar in possession of the land and name of petitioner Chhoti be removed from the record of rights as successor of ancestor Bhaga. Facts giving rise to the litigation have been very aptly noted in the judgment dated 10.11.1995 (Annx.2) rendered by the Revenue Appellate Authority and the judgment dated 21.7.2000 (Annx.3) delivered by the Board of Revenue, Rajasthan. However, it will be necessary to recapitulate the facts for decision of this petition too.

(3.) One Bhaga was khatedar tenant of land bearing Khasra Nos. 718, 1400, 1471/2872, 2607, 83 and 170. Total land vested in Bhaga was 92 Bigha, 14 Biswa. After death of Bhaga, his three sons Kishna, Dev Bux and Gyarsa succeeded to the land. A pedigree table has been noted by the Revenue Appellate Authority in its judgment (Annx.2). Suffice it to say that Dev Bux performed a 'Nata' marriage and one Madho came alongwith the lady who had performed 'Nata' marriage with Dev Bux. It is not denied that Madho was not born from the lions of Dev Bux. Thus, Dev Bux died issueless. It will be pertinent to note that before death of Dev Bux, mother of Madho had predeceased. In 1937 vide mutation entry No. 1852, Madho was recorded as legal heir of Dev Bux. After death of Madho, on 28.4.1941 vide mutation entry No. 2855 his wife Gaura was recorded in the revenue record as successor to Madho. Thereafter on 19.10.1946 share of Dev Bux was mutated in favour of petitioner Chhoti vide entry No. 3223. Bishna, grandson of Kishna (brother of Dev Bux) instituted a suit on 16.9.1974 seeking declaration that he is a khatedar cultivator being tenant and had succeeded to the rights of Bhaga. He had further prayed that mutation entries recorded in favour of petitioner Chhoti be annulled. The Court of Assistant Collector, Baran vide its judgment dated 19.7.1989 dismissed the suit primarily on the ground that same is barred by limitation. Aggrieved against the same, Bishna filed appeal before the Revenue Appellate Authority. Vide judgment dated 10.11.1995 (Annx.2), the appeal was accepted, the order of the Assistant Collector, Baran was set aside and it was held that Madho could not succeed to Dev Bux as he was not born from his lions as had come alongwith his mother in 'Nata' marriage. He was described by the Revenue Appellate Authority as 'Gelard' or 'Pichhlag'. Therefore, all the mutation entries recorded in favour of Madho, Gaura and Chhoti petitioner were set aside. Aggrieved against the same, the present petitioner Chhoti and Bishna filed two separate appeals. The Board of Revenue in its judgment dated 21.7.2000 (Annx.3) noted the factual position as under: - -