Mohammad Rafiq, J. - (1.) THIS writ petition, filed by petitioners Kandera and Gulkandi, seeks to challenge judgment dated 12.10.2000 passed by Board of Revenue for Rajasthan, Ajmer, in Second Appeal, with further direction that all action taken pursuant to that be declared illegal and legal consequences to follow.
(2.) FACTS of the case are that respondent No. 4 Gangaram S/o. Khyali @ Halli filed a suit for injunction as well as partition of agriculture land comprising of Khasra Nos. 2417, 2418, 2419, 2421, 2422, 2428 and 2429, admeasuring 13 bigha 7 biswa. The said land was situated in village Patwar Halka Bhelara, Tehsil Nadbai, District Bharatpur. It was pleaded that respondent No. 4 Gangaram has wrongly been recorded as khatedar having 1/3rd share in aforesaid land. He was entitled to one -half share in view of the fact that he is son of Khyali @ Halli, who was real brother of defendant Kandera. Both, Halli and Kandera, were sons of Marua and on his death both inherited half -half share each. The suit was filed by Gangaram. Petitioner filed written statement disputing the claim of the plaintiff -respondent. Petitioner denied the pedigree and stated that Khyali @ Halli was son of Sukhram, who was brother of Marua. It was thus asserted that Khyali @ Halli was not son of Marua. The land in dispute was self -acquired property of Marua and therefore defendant -petitioner Kandera inherited hole of the land. However Khyali @ Halli died. Gangaram at that time was a very small child. Petitioner Kandera being close relative of Khyali @ Halli, out of gratitude and compassion, got 1/3rd share in the land recorded in his favour, which was actually given to him for his survival. When the suit was filed by respondent No. 4, he himself gave a statement admitting all these facts. The trial court, however, decreed the suit in favour of plaintiff -respondent No. 4. Petitioner filed appeal before the Revenue Appellate Authority, who allowed the same vide judgment dated 24.06.1994. Plaintiff -respondent filed second appeal before the Board of Revenue, which, however, reversed the judgment of the Revenue Appellate Authority and restored that of the Assistant Collector, Bharatpur. Shri Suresh Goyal, learned counsel for petitioner argued that the Board of Revenue has seriously erred in holding that the theory of Khyali @ Halli being son of Sukhram was not set up before the trial court. Bare perusal of the judgment of the trial court would go to show that case accepted by first appellate court was fully pleaded before the trial court by the defendants and evidence in support thereof was also adduced. The Board has further misread Annexure -1, the mutation entry made on 09.09.1965 whereby 2/3rd land was attested in favour of Khyali @ Halli S/o. Marua and 1/3rd land in favour of Gangaram. The mutation entry attested by Gram Panchayat, leaves no doubt that Khyali @ Halli was son of Marua. The Board of Revenue has thus passed the judgment on surmises and conjectures. The Board of Revenue in its judgment has given cursory reference to some documents with total non -application of mind. Board of Revenue has not given any cogent reason for reversing judgment of the first appellate court, which is well reasoned and considered, both on facts and law. The Board has not assigned any reason while differing with judgment of Revenue Appellate Authority. Learned counsel referred to statement of Gangaram (Annexure -3) in which he admitted that he was cultivating 1/3rd of the disputed land and Kandera S/o. Marua was cultivating remaining 2/3rd. In that statement he has passingly stated that Kandera was his uncle but this statement does not prove that he was his real uncle. In fact Khyali @ Halli father of Gangaram was not real brother of Kandera, which fact has been misunderstood by the Board of Revenue. The Revenue Appellate Authority has rightly concluded otherwise. It is, therefore, prayed that the writ petition be allowed.
(3.) SHRI R.B. Sharma, learned counsel for respondent No. 4, has argued that learned Assistant Collector has rightly decreed the suit on the basis of oral and documentary evidence including the documents, namely, Jamabandi of Samvat 2043, mutation attested by Gram Panchayat (Exhibit P -2), Milan Kshestrafal (Exhibit P -3), copy of Khasra Girdawari 2043 -45 (Exhibit P -5) and copy of Khasra Girdawari 2042 -45 (Exhibit P -6). Learned trial court has relied on statement of Gangaram (PW -1), Chiranji (PW -2), Beniram (PW -3) and Tejo (PW -4). Learned counsel, in particular, referred to statement of Tejo (PW -4), who admitted that mutation No. 13 was attested in the year 1965 by Gram Panchayat, in which pedigree of Marua has been given. Mutation was entered in the names of Khyali @ Halli and Kandera, both sons of Marua. According to that pedigree, Marua had two sons, one is Khayali @ Halli and another is Kandera. Khyali @ Halli was having one son Gangaram, plaintiff -respondent No. 4. Tejo (PW -4) also admitted that Marua was her father -in -law and that pedigree given in mutation attested by Gram Panchayat, was correct. Learned counsel argued that property of deceased Marua was situated in two villages, one part of that was situated in village Balara, in which petitioner Kandera and Khyali @ Halli respondent Gangaram, therefore had equal share and there never arose any dispute with regard thereto. Property in dispute is, however, situated in village Kawai, wherein petitioner had 2/3rd share and respondent No. 4 Gangaram had 1/3rd share. It is denied that Kandera had 2/3rd and respondent Gangaram had 1/3rd share. Said assertion is absolutely incorrect. Since Kandera and Khyali @ Halli are both sons of Marua, therefore, they were entitled to inherit half -half share each in the land situated in village Kawai and plaintiff Gangaram being only son of Khyali @ Halli, was entitled to inherit such half share. It is argued that Revenue Appellate Authority has wrongly reversed findings recorded by the Assistant Collector, which was based on correct appreciation of evidence. Board of Revenue therefore was justified in reversing that finding and restoring judgment of Assistant Collector as to whether Khyali @ Halli and Kandera are sons of Marua, is a question of fact and writ of certiorari can be entertained only if there is any error apparent on the face of record inasmuch as any legal issue arises in the matter. There being none, the writ petition is liable to be dismissed.;