- (1.) THIS petition has been filed against the order dated 20.12.2011, passed by the Board of Revenue, Ajmer setting aside the order dated 05.07.2008, passed by the Revenue Appellate Authority (hereinafter 'RAA') in appeal No.4/2008 and restoring the judgment and decree dated 31.03.2008, passed by the Assistant Collector, Boli, District Sawaimadhopur dismissing the suit for correction of revenue entries and permanent injunction filed by the petitioners-plaintiffs (hereinafter 'plaintiffs') against the respondents-defendants Nos.1 to 7 (hereinafter the defendants).
(2.) THE facts of the case are that one Kishnya and Ratna were real brothers. Kishnya was the recorded khatedar of land in khasra Nos.1, 2, 31, 32 admeasuring 18 bighas 3 bishwa in village Sarwari, Tehsil Boli. Kishnya died issue-less. Following his death, his brother's son Kesra, the predecessor in interest of the plaintiffs at that point of time got himself mutated as the khatedar in place of the deceased Kishnya. Subsequently, by consent of all the three brothers, namely Kesra, Ramsukha and Birdya all natural born sons of Ratna on a joint application before the Tehsildar stating that they were entitled to in equal measure to the land in deceased Kishnya's khatedari, revenue entries were made and the names of Kesra, Ramsukha and Birdya were mutated in the revenue records in equal measures in respect of the khatedari land of the deceased Kishnya on or about 14.02.1983. Kesra however appears to have thereafter filed a suit for correction of revenue entries and permanent injunction on or about 19.11.1997 against his brothers Ramsukha and Birdya inter alia praying that he was the adopted son of deceased Kishnya and that the entry in the record of rights mutating Kishnya's khatedari land in equal measure between Kesra, Ramsukha and Birdya vide mutation dated 14.02.1983 was absolutely illegal and a result of collusion by Ramsukha and Birdya both S/o Ratna with the revenue officials. It was stated that the factum of the mutation dated 14.02.1983 had came to the plaintiffs' knowledge only in the year 1997 consequent to which the suit for correction of revenue entries and permanent injunction against Ramsukha and Birdya was filed in 1997. It was further stated that the plaintiff was entitled to obtain a declaration from the court of the Assistant Collector, Boli that Kesra as the adopted son of deceased Kishnya was entitled to be the sole successor to the khatedari land of Kishnya falling in khasra Nos.1, 2, 31, 32 admeasuring 18 bighas 3 bishwas in village Sarwari, Tehsil Boli. Kesra appears to have expired during the pendency of the suit and was substituted by his legal representatives, the petitioners in the writ petition. On the matter coming up before the Assistant Collector, Boli, notices came to be issued to the defendants in the suit, Ramsukha and Birdya as also the State of Rajasthan through Tehsildar. In the written statement to the suit laid by Kesra, it was submitted by Ramsukha and Birdya that Kesra had never gone in formal adoption or otherwise to deceased Kishnya, nor even otherwise any customary adoption undertaken. It was submitted that following the death of their father's brother Kishnya, Kesra on the one part and Ramsukha and Birdya in part of second and third were in cultivatory possession of deceased Kishnya khatedari land as successors and were cultivating their respective shares of the estate of deceased Kishnya in accordance with law. It was stated that mutation in equal measure in favour of Kesra, Ramsukha and Birdya were got done by the consent of the three successors of deceased Kishnya in the course of a revenue campaign and further that following the mutation on or about 14.02.1983 all the three successors had mortgaged their respective shares with the SBBJ Bank for obtaining loan for agricultural purposes. It was further submitted that the revenue suit laid by Kesra was founded upon the alleged adoption of Kesra by the deceased Kishnya and a revenue court had no jurisdiction to address the foundational fact of Kesra's alleged adoption by deceased Kishnya on which the entire suit for correction of revenue entries and permanent injunction was founded. The Assistant Collector, Boli framed five issues on the basis of pleadings before him which are as under : ...[VERNACULAR TEXT OMMITED]... Having considered the issues independently, the Assistant Collector, on the basis of evidence on record, came to a conclusion that the mutation No.66 dated 14.02.1983 which was exhibited before him indicated that the lands were mortgaged with the SBBJ Bank to the extant of their respective share by all the three successors of deceased Kishnya. Reference was made to exhibit-A/1 which was a joint application by Kesra, Ramsukha and Birdya to the revenue authority with the request that Kishnya's khatedari land following his death be entered equally in the names of three brothers Kesra, Ramsukha and Birdya. Reference was also made to exhibit-A/2 drawn on a stamp paper recording the consent of the three successors for the division of deceased Kishnya's khatedari land in equal measure between them in the course of the revenue campaign. The Assistant Collector further found that the case of the plaintiffs as laid was contrary to the documentary evidence on record and therefore held that there was no case made out for correction of entries as sought and permanent injunction against the defendants in the suit, Ramsukha and Birdya. Delving on issue No.3 relating to the question as to whether Kesra was the adopted son of the deceased Kishnya entitling him to succeed in the whole measure to Kishnya's khatedari land, the Assistant Collector noted that the assertion of the plaintiffs was not supported by any documentary evidence on record and further that in any event the issue of adoption on which the entire suit was built was an issue in respect of which a declaration could only be made by the civil court and in respect whereof the revenue court had no jurisdiction. So holding, the suit for correction of revenue entries and permanent injunction was dismissed by the Assistant Collector vide his judgment and decree dated 31.03.2008. An appeal by the legal representatives of Kesra against the judgment dated 31.03.2008, passed by the Assistant Collector before the RAA (Appeal No.04/2008) however came to be allowed by the RAA vide its order dated 05.07.2008 without addressing each of the issues formulated by the Assistant Collector independently as mandated by Order 41 Rule 31 CPC and further exceeding his jurisdiction and perversely finding that Kesra was the adopted son of deceased Kishnya and therefore entitled to succeed wholly as a sole successor to the khatedari land of deceased Kishnya with consequential benefits to his successors.
(3.) AGGRIEVED by the order dated 05.07.2008 upsetting and setting aside the judgment and degree dated 31.03.2008, passed by the Assistant Collector, Boli, the defendants in the suit Ramsukha and the legal representatives of his brother Birdya, who had in the meantime expired, approached the Board of Revenue, Ajmer by way of a second appeal under Section 224 of the Rajasthan Tenancy Act, 1955. The Board of Revenue considered the entire facts and evidence on record and held that the RAA had proceeded without any evidence on record to upset without just cause detailed findings on all issues in the suit based on evidence by the Assistant Collector, Boli. It was held that the order dated 05.07.2008, passed by the RAA was contrary to the provisions of Order 41 Rule 31 CPC as the appellate court had not adjudicated the appeal before it issue-wise. It was further held that the entire suit laid by the plaintiffs being based on question of purported adoption of Kesra by deceased Kishnya was not amenable to the jurisdiction of a revenue court as the question of adoption was a matter for the civil courts to adjudicate. The Board of Revenue further noted that a joint application has been made before the Tehsildar by Kesra, Ramsukha and Birdya, which was exhibited before the Assistant Collector, indicative of mutation dated 14.02.1983 having been made on the consent of the parties in the course of revenue campaign and further that following the mutation dated 14.02.1983 in equal measure between Kesra, Ramsukha and Birdya, the land in issue had been mortgaged to the SBBJ Bank to obtain agricultural loans by each of the three beneficiaries. So holding the Board of Revenue vide its order dated 20.12.2011, set aside the order dated 05.07.2008, passed by the RAA and restored the judgment and degree dated 31.03.2008, passed by the Assistant Collector. I have heard the counsel for the petitioners and perused the writ petition as also the order dated 31.03.2008 passed by the Assistant Collector, Boli; the order dated 05.07.2008, passed by the RAA and the order dated 20.12.2011, passed by the Board of Revenue. In my considered opinion, the order passed by the Board of Revenue setting aside the order passed by the RAA and restoring the order passed by the Assistant Collector is liable to be sustained primarily in view of the fact that the whole suit laid by Kesra in the first instance for correction of revenue entries and permanent injunction against Ramsukha and Birdya was based on Kesra's alleged adoption by the deceased Kishnya. The fact of adoption could not have been gone into by the RAA a revenue court as the question of adoption relates to the legal character and status of a person and can only be decided by a civil court. Reference in this regard can be had to the judgment of the Hon'ble Supreme Court in the case of Ramchandra Dagdu Sonavane (dead) by LRs. & Ors. Vs. Vithu Hira Mahar (dead) by LRs. & Ors. [(2009) 10 SCC 273] wherein the Hon'ble Supreme Court has held that the question whether the adoption is valid or not pertains to the status and legal character of an individual, which falls within the purview of Section 34 of the Specific Relief Act, 1963. The Apex Court further held that when a person claims on the basis of adoption, such a question cannot be decided by the Collector and can only be decided by a civil court. ;