Chhitar Lal vs Chhotu Lal and Others

Heard on the question of admission and stay. The intra-court appeal has been preferred as against the order dated 31.7.2012 passed by the Single Bench dismissing the writ petition affirming the order passed by the Board of Revenue on 23.5.2012.

The plaintiff-respondent Chhotu Lal filed revenue suit before the SDO, Khanpur, District Jhalawar. He claimed the right on the basis of gift-deed executed by Harku Bai. It was submitted by the plaintiff that Harku Bai was khatedar of 22 bigha, 12 biswa of land. She had four daughters namely Dhanni Bai, Pana Bai, Jana Bai and Kanya Bai. The plaintiff Chhotu Lal lived with Harku Bai and took care of her. Harku Bai executed a gift-deed on 28.4.1972 which was duly registered. On execution of gift-deed, plaintiff Chhotu Lal was placed in possession of the land. Mutation was also made in favour of Chhotu Lal on 5.7.1974. In the course of settlement proceeding, name of Harku Bai was wrongly entered ignoring the mutation made in favour of Chhotu lal. Taking advantage of wrong entry made in the revenue records in favour of Harku Bai which was made ignoring the mutation already made in favour of Chhotu Lal, mutation was obtained in surreptitious manner in the name of Chhitar Lal and two daughters of Harku Bai namely Jana Bai and Kanya Bai on 4.8.1978. The Gram Panchayat did not notice the mutation which was already made in favour of Chhotu Lal on 5.7.1974 on the basis of gift deed dated 28.4.1972. There was dispute with respect to possession of the land in dispute between Chhitar Lal and Chhotu Lal which entailed proceedings under Sections 145 and 116 Cr. P.C. in which order was passed by the Sub Divisional Magistrate, Aklera that the plaintiff Chhotu Lal was in possession of the land in dispute and possession was ordered to be restored to him from the receiver appointed temporarily in the proceedings u/s 145 Cr. P.C. During pendency of the suit filed by Chhotu Lal against Chhitar Lal and others, defendant Chhitar Lal sold the land in dispute by way of registered sale deed dated 21.3.1997 to Ramesh Chand and Madanlal. They were impleaded as co-defendants in the suit by the plaintiff Chhotu Lal.

Defendant Chhitar Lal contended in the reply before the SDO that he was conferred khatedari rights on account of mutation dated 4.8.1978 made by the Gram Panchayat in his favour. He further contended that pursuant to gift deed executed by Harku Bai, plaintiff Chhotu Lal was not put into possession of the land by Harku Bai; consequently, the registered gift deed dated 28.4.1972 was not effective.

The SDO held that Harku Bai was khatedar of the land in question. She executed gift deed on 28.4.1972 and plaintiff Chhotu Lal was placed in possession of the gifted property. The SDO held the mutation made in favour of defendant Chhitar Lal on 4.8.1978 to be without any legal foundation as mutation had already been made in favour of Chhotu Lal on 5.7.1974 consequent to gift deed dated 28.4.1972; Harku Bai was not the owner of the land in dispute on the date on which mutation was made by the Gram Panchayat in her place in favour of defendant Chhitar Lal and others; order dated 11.4.1986 u/s 145 Cr. P.C. has attained finality as revision preferred against the order was dismissed by the Sessions Judge vide order dated 4.11.1987. The suit was decreed by the SDO vide judgment dated 5.7.2006 aggrieved thereby, appeal was preferred before the Revenue Appellate Authority. The Revenue Appellate Authority vide judgment dated 11.6.2007 held that execution of registered gift deed was not proved in accordance with the provisions contained u/s 68 of the Indian Evidence Act, 1872 and reversed the decision of the SDO. Against the decision of the Revenue Appellate Authority, appeal was preferred before the Board of Revenue. The appeal was allowed and judgment of the SDO was restored by the Board of Revenue vide judgment dated 23.5.2012 aggrieved thereby, writ petition was preferred before the Single Bench. The Single Bench dismissed the writ petition with cost of Rs. 50,000/-imposed upon the defendant-appellant out of which, Rs. 25,000/- was ordered to be paid to the Rajasthan State Legal Services Authority and remainder to the plaintiff-respondent Chhotu Lal. Aggrieved by the order dated 31.7.2012 passed by the Single Bench, intra-court appeal has been preferred by the defendant-appellant Chhitar Lal.

Shri Arun Sharma learned counsel appearing on behalf of the appellant has submitted that execution of gift-deed was not established as per requirement of Section 68 of the Indian Evidence Act. He has also submitted that Harku Bai was having only 1/5th share in the property; thus, she was having no right to execute gift deed of the entire land in favour of plaintiff Chhotu Lal. She could have executed gift deed only upto her 1/5th share. He has further submitted that finding in respect of possession was not correct. He has also submitted that imposition of cost of Rs. 50,000/- was not warranted in the facts of the case.

After hearing learned counsel for the appellant, we are of the considered opinion that there is no merit in the appeal. We have gone through the plaint and the written statement filed before the SDO. In Para-3 of the plaint it was specifically mentioned that the gift deed had been executed by Harku Bai on 28.4.1972 in favour of plaintiff Chhotu Lal. There was no specific denial in the written statement to this averment. In the special plea taken in the written statement, it was clearly admitted by the defendant-appellant that pursuant to execution of gift deed by Harku Bai, possession had not been handed over to the plaintiff; thus, execution of gift deed was not denied. In such circumstances, the Revenue Appellate Authority committed perversity in holding that execution of gift deed was not established. Thus, finding of the SDO has been rightly restored by the Board of Revenue on due consideration of evidence on record and pleadings of the parties.

Coming to the submission that Harku Bai was having only 1/5th share in the property, this objection was never taken by the defendant-appellant before the SDO, RAA or the BOR. First time it was taken in the writ petition before the Single Bench. The same having not been taken before the SDO, RAA or the BOR, could not have been raised in the writ petition for the first time because the submission is not question of law but depend upon the facts. The appellant was not entitled to raise this issue for the first time in writ petition having not taken it before the revenue courts.

Coming to the question of possession, the finding of fact has been recorded by the SDO as well as the Board of Revenue which was upheld by the Single Bench relying on the order passed u/s 145 Cr. P.C. in which finding of fact of possession has been recorded in favour of the plaintiff-respondent and other evidence has also been considered. The same is not amenable to interference in writ jurisdiction of this court being finding of fact. In the proceedings u/s 145 Cr. P.C., possession of the plaintiff was found established by the SDM vide order dated 11.4.1986 and revision against the same was also dismissed by the Sessions Judge. The order passed in proceedings u/s 145 Cr. P.C. has not been revoked. Thus, finding of possession based thereupon coupled with other evidence which has been recorded is unassailable; it is not perverse or suffering with any illegality/infirmity. Even otherwise, the same cannot be interfered with in the intra-court appeal. Coming to the question of imposition of cost, the Single Bench has imposed cost of Rs. 50,000/- upon the defendant-appellant, Rs. 25,000/- to be paid to the Rajasthan State Legal Services Authority and the remainder to the plaintiff-respondent Chhotu Lal. Considering the facts and circumstances of the case and the fact that mutation was made on 4.8.1978 in favour of defendant though it was illegal, in our opinion, it would meet the ends of justice if the cost is reduced to Rs. 25,000/-. Accordingly, we set aside that part of the cost payable to the Rajasthan State Legal Services Authority however, cost of Rs. 25,000/- shall remain payable to the plaintiff-respondent No. 1. The cost is reduced to the aforesaid extent. However, appeal is liable to be dismissed on merits and it is hereby dismissed. Stay application No. 11123/12 is also dismissed.