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Judgment
By way of this appeal, the appellant has challenged the judgment and order of the learned Single Judge whereby the learned Single Judge has
dismissed the writ petition preferred by the present appellant.
Counsel for the appellant contended that the Board of Revenue and all other Courts were to decide whether the property of HUF was disposed of as
Karta in independent capacity or the Karta of HUF.
Counsel for the appellant has relied upon the decision of Supreme Court in case of Amritsagar Gupta & Ors. vs. Sudesh Beharilal & Ors.; 1969 (1)
SCC 810 and also contended that concurrent finding is not a ground to reject the claim. The family needs money and for that mortgage and thereafter,
sale deed was executed which is very clear in view of the documents produced on record. In that view of the matter, the view taken by the learned
Single Judge is required to be reversed.
Counsel for the respondents has supported the orders and contended that in view of the observations made by the Board of Revenue which reads as
under:-
“izdj.k ds la{ksi esa rF; bl izdkj gSa fd xzke fBdfj;k ea vkjkth [kljk ua 292 jdck 7 ch?kk 12 fcLok dks pkSFkey us viuh [kkrsnkjh o dk’r dh crkrs
gq, fnukad 03-05-1974 dks chjcy iq= ';ksc['k tksxh dks tfj, jftLVMZ foØ; i= 3500 :i;s esa foØ; dj nhA gjQwy us bl Hkwfe ds fo""k; esa ,d okn
bLrdjkjgd o n[ky;kch tfj, rdklek dk fnukad 16-05-1990 dks izLrqr dj fuosnu fd;k fd fooknxzLr Hkwfe Lo- NksVw dh Fkh] ftlds nks iq= gjQwy o
pkSFkey ,oa csok Jhefr izHkkrh FkhA NksVw dh e`R;w ds i’pkr mDr rhuksa i{kdkj 1@3&1@3 fgLls ds [kkrsnkj dk’rdkj gks x;sA
pkSFkey dks fookfnr Hkwfe foØ; djus dk vf/kdkj ugha FkkA vr% foØ; i= vf/kdkj foghu gSA mi[k.M vf/kdkjh] dksViqryh us vius fu.kZ; fnukad 24-
121992 }kjk fooknxzLr vkjkth ij rglhynkj dksViqryh dks fjlhoj fu;qDr dj fn;k] ftlds fo:) chjcy us jktLo vihy izkf/kdkjh] t;iqj ds le{k vihy izLrqr dj nhA
mUgkusa s vius fu.kZ; o fMØh fnukad 12-06-2000 }kjk vihy vihykFkhZ fujLr dj nh rFkk vihyk/khu vkns’k fnukad -24-12-1992 dks ;Fkkor j[kkA
mDr fu.kZ; o fMØh fnukad 12-06-2000 ds fo:) ;g f}rh; vihy e.My esa izLrqr dh xbZ gSA
geusa mHk; i{k ds fo}ku vfHkHkk""kdx.k dh cgl vihy ds ,Meh’ku Lrj ij lquh rFkk izLrqr nLrkostkr dk voyksdu fd;kA
izLrqr izdj.k dk voyksdu djus ls ,slk izrhr gksrk gS fd fooknkLin vkjkth e`rd NksVw dh Fkh rFkk jsLiksMsaV gjQwy o csok izHkkrh vka[kksa ls vU/ks
Fks rFkk izHkkrh dh e`R;w gks pqdh gS] pkSFkey&ifjokj dk eqf[k;k Fkk] ftlus jsLiksMsV gjQwy o viuh ekrk ds vU/ks gksus dk uktk;t Qk;nk mBkdj]
fooknkLin vkjkth dk vihykaV chjcy dks cspku dj fn;kA e`rd NksVw tks fd jsLiksMsaV dk firk Fkk] mldh vkjkth esa gjQwy dks 1@2 fgLlk ikus dk
iwjk&iwjk gd gS D;ksafd izHkkrh ej pqdh gS] vr% gjQwy o pkSFkey & nksuksa HkkbZ;ksa dk vk/kk vk/kk fgLlk fooknkLin Hkwfe esa gSA
fooknkLin vkjkth iSr`d lEifr gksus ds dkj.k dsoy mu nksuksa HkkbZ;ksa dk gh ml ij vf/kdkj curk gSA jktLo vihy izkf/kdkjh] t;iqj us fnukad 12-06-2000
esa foLr`r foospu dj tks fu.kZ; o fMØh ikfjr dh gS mlesa gLr{ksi dh vko’;drk izrhr ugha gksrh gSA
mijksDr foospu ds vk/kkj ij vihy vihykaV ,Meh’ku Lrj ij gh fujLr dh tkrh gSA
The judgment of Supreme Court will not apply inasmuch as it was suit against HUF, where the Karta was joined in independent capacity but he had
knowledge, therefore, the facts of the case will not apply in the present case inasmuch as co-parcner cannot be allowed contrary to finding of Board
of Revenue.
In that view of the matter, we are in complete agreement with the view taken by the learned Single Judge, more particularly the observations, which
are made as under:-
“I find that the issue about maintainability of the suit was not framed thus was not considered by any of the courts. A new case cannot be made
out before the High Court though petitioner has tried to project that while deciding the issue No.1 and 2, the issue as to whether the land was sold by
the Karta of the family or not has been discussed though it has been decided against the petitioners.
Learned counsel for petitioners was asked to state as to whether sale deed was executed in the capacity of the Karta of the family or individually. He
is fair to state that the sale deed was executed in individual capacity and not by showing him Karta of the family. In view of the fact aforesaid and as
no evidence is existing to show the sale of the land by Karta, I do not find that the only issue raised by the petitioners is made out. It is otherwise a
case, where there exist concurrent finding of fact of three revenue courts and it is neither perverse nor illegal thus I do not find any reason to cause
interference in the impugned orders. In view of the aforesaid, writ petition is dismissed, however, with a clarification that the provision of
fragmentation of the land does not exist, thus any direction for it would not apply while executing the order of the courts below.â€
We find no illegality in the order of the learned Single Judge.
In that view of the matter, the appeal being devoid of merit deserves to be dismissed. The same is dismissed.