- (1.) BY this petition a challenge has been laid to the order dated 3-10-2002 passed by the Board of Revenue Rajasthan Ajmer (herein after 'the Board') quashing and setting aside the order dated 30-12-1999 passed by the Revenue Appellate Authority Jaipur, which upheld the judgment and decree dated 26-2-1998 passed by the Assistant Collector-I, Jaipur dismissing the suit under Sections 88, 53 and 188 of the Rajasthan Tenancy Act, 1955 (herein after 'the 1955 Act') filed by plaintiff Chothu-respondent herein- (since deceased and represented by respondents No.1/1 to 1/7, herein after referred to 'the plaintiff').
(2.) THE facts of the case are that the plaintiff Chothu filed a suit for declaration, partition and permanent injunction under sections 88, 53, and 188 of the 1955 Act against the defendants Birdha s/o Nanga (since deceased and now represented by Murli), Mangla and Gyarsa sons of Kalu and Ram Kishore s/o Gyarsi Lal. It was stated in the suit that land of Khata No.40, Khasra Nos.101, 645, 648, 649, 651 in all five admeasuring 9 bighas 11 biswas and Khata No.9, Khasra No.172 to 177, 444, 447 in all eight admeasuring 36 Bighas 11 Biswas situated at village Daulatpura Tehsil Amer, District Jaipur, aggregating to 46 Bighas 9 Biswas was in the joint khatedari of the plaintiff and the defendants in which the plaintiff had half share and the defendants Birdha and Mangla and also their successor in interest/ assignee the vendee Ram Kishore had half share. It was stated that the Settlement department had wrongly recorded the land of aforesaid two Khatas No.40 and 9 aggregating to 46 Bighas 9 Biswas aforesaid as in 1/3 share to plaintiff and 2/3 share of defendants No.1&2. In these circumstances, the plaintiff claimed a declaration that he be declared the sole khatedar to an extent of half share of the land in the two Khatas No.40 and 9 aggregating to 46 Bighas 9 Biswas situated in village Daulatpura, Tehsil Amer, and thereupon the land be divided by metes and bounds. The plaintiff also sought a restraint on the defendants in suit from interfering in plaintiff's alleged half share in 46 Bighas 9 Biswas situated in village Daulatpura, Tehsil Amer. On service of notices in the suit for declaration, partition and permanent injunction, the defendants resisted the suit stating that the land belonged to erstwhile khatedar one Nanga, who had three sons Prabhat, Kalu @ Kaliya and Birdha. After the death of Prabhat, plaintiff Chothu, as his son was substituted in the Jamabandi of Svt.2026-29 (Ex.A-1) and shown as joint khatedar alongwith Kalu @ Kaliya and Birdha. It was stated that Chothu in these circumstances could lay a claim only to the rights of Prabhat s/o Nanga, and as Prabhat had two other brothers Kalu @ Kaliya and Birdha, he was entitled to only 1/3 share in the estate of Nanga-his late father. Chothu as Nanga's son would only be entitled to 1/3 share as successor of Prabhat's right in the khatedari of Nanga. It was submitted that the Jamabandi of Svt.2026-29, relied upon by plaintiff himself indicated that plaintiff was substituted for Prabhat, and could therefore only succeed to an extent of share of Prabhat in the khatedari of Nanga which was only 1/3 of the land in the two Khatas No.40 and 9 admeasuring in the aggregate to 46 Bighas 9 Biswas situated in village Daulatpura, Tehsil Amer. The learned Assistant Collector on the basis of pleadings of parties framed four issues, (1) Whether the plaintiff (Chauthu) was entitled to get himself declared as khatedar of half share of the land in the aforesaid two Khatas No.40 and 9 aggregating to 46 Bighas 9 Biswas situated in village Daulatpura, Tehsil Amer, (ii)Whether the plaintiff was entitled to an order from the court for restraining the defendants from interfering in his alleged possession of half share in Khatas No.40 and 9 aggregating to 46 Bighas 9 Biswas. (iii) Whether the defendants Kalu @ Kaliya and Birdhar had 2/3 share in the land under Khatas No.40 and 9 aggregating to 46 Bighas 9 Biswas situated in village Daulatpura, Tehsil Amer. (iv) This issue was with regard to relief which could be granted in the suit. The learned Assistant Collector-I Jaipur, vide judgment and decree dated 26-2-1998 dismissed the plaintiff's suit holding. It was held that the plaintiff Chothu had admitted the pedigree propagated by the defendants Kalu @ Kaliya and Birdha where under the plaintiff's father Prabhat along with the two defendants aforesaid was the son of Nanga. The court held that while claiming as the son of Prabhat Chothu could not be entitled to more than 1/3 khatedari in the joint holding the remainder 2/3 of the holding having shared equally between Kalu @ Kaliya and Birdha. The plaintiff preferred a first appeal before the Revenue Appellate Authority Jaipur under Section 223 of the 1955 Act against the judgment and decree dated 26-2-1998. In appeal, the plaintiff tried to set up a new case that Nanga and his brother Hukma were joint khatedars of the land of the aforesaid two Khatas No.40 and 9 admeasuring 46 Bighas 9 Biswas situated in village Daulatpura, Tehsil Amer, and Prabhat son of Nanga (the plaintiff's father) had gone in adoption to Hukma. It was sought to be argued in the appeal that Hukma and Nanga each had half share in the land in issue and Prabhat having gone in adoption to Hukma was entitled to half share in the land of aforesaid two Khatas No.40 and 9 aggregating to 46 Bighas 9 Biswas as the successor of Hukma. However, as the argument set up before the first appellate court by plaintiff Chothu, was contrary to his own pleadings in the suit, and even otherwise devoid of any evidence before the trial court in this regard, the appeal was dismissed vide order dated 30-12-1999.
(3.) AGAINST the concurrent findings of the learned Assistant Collector-I, Jaipur and the Revenue Appellate Authority Jaipur, the plaintiff Chothu filed a second appeal before the Board of Revenue under Section 224 of the 1955 Act. The learned Board vide order dated 3-10-2002 allowed the second appeal and held that plaintiff Chothu was entitled to half share in the land of aforesaid two Khatas No.40 and 9 admeasuring 46 Bighas 9 Biswas situated in village Daulatpura, Tehsil Amer. Aggrieved the petitioners, who were the respondents before the Board of Revenue, have laid this Writ Petition. Heard learned counsel for the parties and perused the material available on record of the writ petition including the impugned orders of the courts below. Section 224 of the 1955 Act limits the scope of second appeals. Sub-section 2 of the Section 224 of the 1955 Act provides limited grounds for filing second appeal. Section 224 of the Act of 1955 is reproduced here under:- 224: Appeals from appellate decrees- (1) an appeal shall lie to the Revenue Appellate Authority from a decree passed in appeal by a Collector. (2) An appeal shall lie to the Board from a decree passed in appeal by Revenue Appellate Authority on any of the following grounds namely:- (i) the decision being contrary to law or to some usage having the force of law; (ii) the decision having failed to determine some material issue of law or usage having the force of law; (iii) a substantial error or defect in the procedure provided by or under this Act or by any other law for the time being in force, which may possibly have produced an error or defect in the decision of the case upon the merits; and (iv) the decision being contrary to the weight of evidence on record where the lower appellate court has varied or reversed any finding of the trial court on a question of fact. ;