SUKHPAL SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The instant writ petition has been filed against the judgment and order dated 29-11-1992 contained in Annexure-3 to this writ petition, which has been passed by the Board of Revenue (respondent No. 2) rejecting the revision filed by the petitioner against the order of the Revenue Authority dated 31-1-1992 contained in Annexure-P.2 to the petition passed on his application under O. 7, R. 11 of the Code of Civil Procedure in the suit pending before the said authority.

(2.) The brief facts of the case, as revealed by the record, are that the petitioner-defendant and respondent No. 3-plaintiff are real brothers and respondent No. 4 Smt. Gurdev Kaur is their sister. Their father Ishar Singh was holding a (sic) land in Chak No. 5-MLD (B), tehsil (sic) district Sri Ganganagar, who died on 12-11-1987. The petitioner-defendant got the mutation of the whole land in his favour on the strength of a Will purported to have been executed by his father Ishar Singh. The respondent No. 3 (plaintiff) filed a suit before the Revenue Authority under S. 53 read with S. 88 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as "the Tenancy Act"), wherein the allegations have been made as under :- (i) after the death of their father, their sister Gurdeo Kaur has relinquished her share in favour of the said brothers; (ii) partition took place between the petitioner-defendant and respondent No. 3 (plaintiff) which was verified and signed by the Tehsildar and it was attested by the witnesses; (iii) the petitioner forged a Will on 21-5-1988 in his favour and it has been shown to have been made on 15-3-1987; (iv) the said Will is forged and fabricated document as it was not executed by their father. In March, 1987 when the alleged Will is purported to have been made, his father was with him in Punjab; (v) the Will was presented by the petitioner-defendant himself; (vi) had the Will been a genuine document, it could have been disclosed on 30-11-1987 when the partition took place before the Tehsildar; and (vii) no notice was given to the respondent No. 3-plaintiff at the time of mutation proceedings. The Prayer Clause reads as under :- (a) declaration be made that the plaintiff was entitled for 1/3 share in the land in dispute and after getting it partitioned, he was entitled to possession over 1/3 share; (b) he be put in possession of the said 1/3 share and mutation be made in his favour; (c) award him the costs; and (d) grant any other relief, to which the plaitniff was entitled.

(3.) During the penency of the suit, the petitioner-defendant filed an application before the competent Revenue Authority that the suit may be dismissed as it did not disclose any cause of action and the order to be passed under O. 7, R. 11, C.P.C. Moreover, the suit was not maintainable before the Revenue Authority and such a declaration can be made only by the Civil Court. Thus, the plaintiff be relegated to the Civil Court for the said relief. The competent authority rejected the said application vide order dated 31-1-1992 (Annexure-P.2). The revenue authority has clearly mentioned that the plaintiff had not sought a declaration of cancellation of the Will, rather it was a case of ignoring the Will being forged and fabricated document. Thus, the revenue authority was competent to proceed with the matter.