NARAYAN SEN Vs. VISHANLAL

JUDGEMENT

(1.) THE facts giving rise to this second appeal are that Vishanlal respondent had brought a suit for a declaration that he was co-sharer in one-half share of 12| bighas of land in village Eklera. He averred that the land was a tenancy holding of his father and that after the death of his father he and his brother Narayan, who is the appellant before us, had been jointly cultivating the land, but that owing to his absence on service from the village Narain appellant had got the land mutated exclusively in his own favour. Narayan, defendant, appellant, on the other hand, claimed that he and the respondent had been living separately after the death of their father and that he was in exclusive possession of the land in dispute. In the evidence it came out that the land had been let by the muafidar to the mother of the parties and was actually cultivated by their father Daulat Ram. After the death of Daulat Ram, the land was cultivated by the defendant appellant while the plaintiff respondent remained away from the village being in service elsewhere. No partition was proved, but the learned trial court threw out the suit on the ground that the land in dispute had been physically in the possession of the defendant appellant. In the first appeal preferred by the plaintiff respondent, the learned Revenue Appellate Authority decreed the suit on two grounds. One ground was that in the khasra girdawari record from 2012 St. to 2014 St. both the plaintiff and the defendant had been shown to be co-sharers in possession, and it was only subsequently that on the application of the defendant the land was mutated exclusively in favour of the defendant. THE other ground was that no partition had been proved.

(2.) THE learned counsel for the defendant appellant has sought to show on facts that the plaintiff respondent was not entitled to declaration that he is a co-sharer in one-half of the land in dispute. We have examined the evidence ourselves and find that the tenancy was not originally created in favour of the defendant appellant but had descended from the parents of the parties. Until 2019 Samvat, the parties were shown to be in possession jointly. THErefore, it was for the defendant appellant to show that there had been a partition as a result of which the plaintiff respondent was ousted from the land in dispute. This onus the defendant appellant has miserably failed to discharge. Another argument advanced by the learned counsel is that order of mutation referred to above was not the subject-matter of appeal before the Revenue Appellate Authority and therefore it should not have been set aside. This argument is fallacious. When a suit for declaration of right is brought the decree that results overrides the mutation order. It is well-settled that mutation orders are only fiscal proceedings and do not conclusively determine the rights. Lastly, the learned counsel for the appellant before us has urged that a question of proprietory title had been raised and a revenue court could not have decided this question. He has cited Ram Chandra vs. Gulab Kanwar (R. R. D. 1965 page 250 ). We note that this plea was not included in the memorandum of appeal and has been raised belatedly. In our opinion, the present case is distinguishable from the case cited by the learned counsel. THE facts of the case reported in R. R. D. 1965 page 250 were that the plaintiff claimed proprietory right as Khudkasht holder on the resumption of a jagir, whereas the defendants claims that they were tenants of the Official Receiver of the property and had become khatedars under the provisions of the Rajasthan Tenancy Act, 1955. In the present case, the dispute is between two brothers regarding property descended from their parents. THE plaintiff was shown to be in joint possession until Samvat 2014 and the defendant alleged exclusive possession. In this situation, the plea of proprietory title on the basis of mere physical possession is clearly untenable, and is intended solely to oust the jurisdiction of the revenue court. THE learned trial court acted merely on the basis of physical possession at the time of the institution of the suit and ignored the fact that before the mutation order was passed exclusively in favour of the defendant the land was shown to be in the joint possession of the parties for four years. In the absence of any partition, the burden was on the defendant to show that there was an ouster of the plaintiff and this he has failed to do. He can not now turn round and say at this stage that a question of proprietory right was involved. In the circumstances of this case, we reject this belated plea. In the result, the appeal is dismissed. .