N.K.JAIN - (1.) -
(2.) BY this writ petition, the petitioner seeks to quash the orders passed by the Board of Revenue Annexure 3, the Revenue Appellate Authority Annexure 2, and Assistant Collector, Nohar Annexure 1 and also prays that his suits be decreed. Brief facts which give rise to this petition are that the father of the plaintiff Smt. Nazi filed two suits against respondents no. 4 to 6 with the allegations that the parties are Musalmans Kayamkhani and are governed by Mohmmedan Law, Kalukhan was the Khatedar of the property, plaintiff was the sister of Kalukhan and the defendant no. 2 is his widow. After the death of Khatedar Kalukhan his agricultural land was devolved upon the plaintiff and his minor and Smt. Rahiman, according to personal law, the petitioners were to get 3/4th share and widow to get l/4th share. It was further alleged that defendant no. 2 Mahboob Ali (respondent no. 5) has been shown in the revenue record as an adopted son of late Kalu Khan whereas adoption has not recognised by Mohammedan Law. The defendants no. 1 and 2 filed written statement alleging inter-alia that the parties are Muslamans by religion, they are not governed by Sariyat Act but they are governed by customary law in the matter of inheritance and adoption. The trial court framed as many as 11' issues. It dismissed the suit holding the Mahboob Ali was adpoted by Kalu Khan according to the customs prevalent in the community to which these persons belong. The petitioner preferred an appeal before the Revenue Appellate Authority and the same was dismissed on December 2, 1982. Second appeal was also filed but the Revenue Board dismissed the same on January 5, 1991 and also the review petition on May 27, 1991. Hence the petitioners have preferred this writ petition. Mr. S.N. Sharma, learned counsel for the petitioner has submitted that the Muslim Law does not recognise adoption. He has also submitted that all the courts below have erred in holding that the petitioner is governed by customary law and further the Revenue Court cannot grant relief and only the civil court can grant relief to this effect. It was argued that the adoption is also not proved, even assuming that the custom of adoption is prevailing in their community. He has relied on Mirzaman V. Noor Alam (1), Suba Dusadh v. Shiva Prasad (2) and Abid Ali Khan v. Secretary of State (3). We have heard learned counsel for the petitioner and perused the record. For proper appreciation of the controversy involved in this case, it would be proper to read Section 40 of the Rajasthan Tenancy Act and Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937. Section 40 of the Rajasthan Tenancy Act reads as under: - "40, When a tenant dies intestate his interest in his holding shall devolve in accordance with the Personal Law to which he was subject at the time of his death."
(3.) SECTION 2 of the Shariat Act reads as under: - " 2. Application of Personal Law to Muslims : - Notwithstanding any customs or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endovements) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)." In this case, the petitioner filed a suit of declaration alleging that they are governed by Muslim Law and claimed declaration, partition and correction of entries. Section 2 of the Shariat Act clearly excludes the agricultural land from its scope. The reliefs claimed by the petitioner could well be granted by the revenue court under Sections 53 and 88 of the Rajasthan Tenancy Act. There was no question of asking the petitioner to get relief from the civil court. In Mirzaman v. Nur Alam (supra), the parties were Mohammden and Mohammden tribes belonged to Hazara district and law of adoption did not apply. It was held that according to Section 27, NWFP Law initially the rule of customs applies to inheritence amongst Mohammdens of NWFP but if there be no custom, personal law has to prevail. The case law cited is not applicable in the case in hand. The Muslim Law does not recognise adoption except if there is custom as it has been held by the aforesaid judgment. It is true that if there is any custom even then it has to be proved but in the instant case nothing has been said in the plaint so also in the rejoinder that the custom was not prevalent and the daughter's son cannot be adopted in this community. The trial court after examining witnesses and relevant documents came to the conclusion that custom of adoption is accepted in their community. The plaintiff has not led any positive evidence to the contrary except mere contentions that the adoption does not prevail in their community. The plaintiff had not shown any instance before the courts below where such adoption might have been alleged but was refused by the community or by the court. On the other hand, the defendant has proved that adoption is accepted in their community and placed and proved four registered deeds of adoption, prevailing for the last 40 years. The trial court, Revenue Appellate Court and the Board of Revenue have concurrently held that there is a custom of adoption in the community to which parties belong. Under the facts and circumstances of the case when the fact that such custom or usage on question of adoption is not prevailing has not been agitated and now it is not open to the petitioner to agitate before this Court. Agricultural land has been excluded from the purview of Section 2 of the Shariat Act. There is sufficient evidence in the instant case which goes to prove the fact of adoption. We are not inclined to interfere with the finding of fact arrived at by the learned trial court and affirmed by the learned Revenue Appellate Authority and the learned Members of the Board of Revenue. We are of the opinion that there is no error or illegality in the impugned orders, calling for any interference under Article 226 of the Constitution by this Court. The writ petition has no force. In the result, the writ petition is summarily dismissed. ;