1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH AT JAIPUR ORDER S.B.Civil Writ Petition No.1050/1994 ### Shree Lal Vs. The Board of Revenue & Ors. ### Date of Order :- 31.03.2009 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr.Pawan Pareek, for the petitioner. Mr.K.K. Mehrishi, Sr. Advocate with Mr.Harsh Kulshrestha, for the respondents. Aggrieved by twin orders passed by the Board of Revenue ('the Board' for short), the first order dated 26.08.1993 and the second order dated 15.10.1993, the petitioner has challenged the same before this Court. It is the case of the petitioner that he and respondent No.5, Kishore, are real brothers. According to him, in the village Sogariya, Tehsil Ladpura, Distt. Kota in a land comprising of Khasra Nos.210, 247, 264, 266, 238, 268, 195/341 & 204/342 measuring 50 bigha 14 biswa, he is entitled to half the share of the said land. Since 2 his brother Kishore was not willing to give half of his share and since his brother had sold 7 bigha 16 biswa of the said land illegally, therefore, he filed a suit for partition and declaration against Kishore. In the suit, he claimed that on 31.05.1960, the brothers had entered into a partition deed. They had partitioned the land in such a way that 25 bigha and 18 biswa land fell in the petitioner's share. He further claimed that the said 25 bigha 18 biswa land was in his possession. Since the respondent No.5 intended to sell the land, therefore, the petitioner prayed for declaration and partition to the effect that the land which falls in khasra Nos.268, 264, 204/342 & 195/341 should be declared to be his. Moreover, half share of the land sold by the defendant, measuring 3 bigha 7 biswa, should also be declared to be his. The defendant, Kishore filed written statement. While he admitted having sold 7 bigha 16 biswa of land, he contended that the land in dispute was not an ancestral property. Infact, it was gifted to him, in 1940, by his grandfather and a grand-uncle. Ever since then, the land was mutated in his name and was shown in his 3 possession. After going through oral and documentary evidence, vide judgment dated 29.01.1986, the trial Court dismissed the suit. Therefore, the petitioner filed an appeal before the Revenue Appellate Authority ('the RAA' for short). Vide judgment dated 25.04.1987, the RAA decreed the suit in favour of the petitioner. Since the respondent No.5 was aggrieved by the judgment dated 25.04.1987, he filed a second appeal before the Board. Vide judgment dated 26.08.1993, the Board allowed the appeal and quashed and set aside the judgment dated 25.04.1987. Thereafter, the petitioner filed a review petition before the Board. However, vide order dated 15.10.1993, the Board rejected the review petition. Hence, this petition before this Court. Mr. Pawan Pareek, the learned counsel for the petitioner, has vehemently contended: firstly, the land in dispute was an ancestral property of Shri Pannalal and Kanwarlal, the grandfather and the grand-uncle of the petitioner. Since it was an ancestral property, Pannalal and Kanwarlal could not have gifted the said property in favour of the 4 petitioner's elder brother Kishore. Secondly, that petitioner's father had clearly claimed that the land in dispute was wrongly shown in the name of Kishore. Upon the father's application, the mutation was opened in the name of Kishore and the petitioner. The said mutation had never been challenged by Kishore. Therefore, the said mutation has become final. According to the learned counsel, these two aspects have escaped the notice of the Board of Revenue, therefore, the judgment dated 26.08.1993 is unsustainable. Thirdly, the order dated 15.10.1993 has been passed mechanically without appreciating the contentions raised by the petitioner. Therefore, the said order is also unsustainable. On the other hand, Mr. K.K. Mehrishi, Senior Advocate, has contended that the petitioner has continuously failed to prove the fact that the land in question was an ancestral property in the name of Pannalal and Kanwarlal. Even before the trial Court, the petitioner had not submitted any document whatsoever to substantiate his case that the property in dispute was, indeed, ancestral in nature. Since the property was self-acquired property of Pannalal and Kanwarlal, they were 5 certainly free to gift the said property to Kishore. Secondly, according to the Circular No.3, Clause 39 of Kota State, once the property was gifted and a mutation was opened on the basis of a gift deed, the mutation was deemed to be final in its nature. Thirdly, the RAA has wrongly recorded that the mutation was opened up in favour of the petitioner and was never challenged by Kishore. In fact the said mutation was challenged and was set aside by the competent Court vide order dated 31.07.1985. Therefore, the said mutation did not reach finality. Lastly, the partition deed dated 31.05.1960 was not even a registered document. Therefore, the same could not be read in evidence. Hence, he has supported both the impugned judgments passed by the Board. It is, indeed, a settled principle of law that it is for the plaintiff to establish his case by producing cogent and convincing evidence. Since the respondent No.5 had denied the fact that the land in dispute was ancestral in nature, obviously it was for the petitioner to establish the fact that the land in dispute was, indeed, ancestral in nature. However, in his judgment dated 29.01.1986, the Assistant Collector had clearly noted that the 6 petitioner did not submit any document to prove the fact that the land in question was ancestral in nature. In the absence of any such evidence, the Board has rightly interpreted that the land in question was a self-acquired property of Pannalal and Kanwarlal. Hence, Pannalal and Kanwarlal were competent to gift the said property in favour of Kishore. The contention raised by the learned counsel for the petitioner that the mutation opened up in favour of the petitioner and Kishore was never challenged by Kishore is bellied by order dated 31.07.1985 passed by the Assistant Settlement officer. Vide order dated 31.07.1985, the said mutation was set aside by the Assistant Settlement Officer. Therefore, even if a statement had been made by the petitioner's father that the mutation which was opened up in favour of Kishore was wrongly done, and even if a mutation had been opened up in favour of the petitioner, the same loses its significance in light of the order dated 31.07.1985. For, both the statement and the mutation so opened have been set aside by the Assistant Settlement Officer vide order dated 31.07.1985. Therefore, the petitioner cannot 7 derive any benefit from the statement made by his father. The Board has also correctly noted that the partition deed dated 31.05.1960 is an unregistered document. Therefore, it cannot be read in evidence. Hence, no reliance can be placed on the same. Since the Board has meticulously discussed the entire evidence, this Court does not find any perversity and illegality in the judgment dated 26.08.1993. As far as the judgment dated 15.10.1993 is concerned, suffice it to say that the Board has correctly observed that no ground was made out for reviewing the order dated 26.08.1993. Therefore, the Board was justified in dismissing the review petition. In the light of these facts and circumstances and for the reasons stated above, this writ petition is devoid of any merit. It is, hereby, dismissed. There shall be no order as to costs. (R.S.CHAUHAN)J. Manoj Solanki