-1- CWP 455/.2002 Kashalliya & Ors. Vs. State & Ors. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR J U D G M E N T S.B. Civil Writ Petition No.455 of 2002. Koshalliya daughter of Shri Radha Kishan and Others VERSUS State of Rajasthan and Others Date of Judgment : :::: 09.12.2010. Hon'ble Mr. Justice Dalip Singh Mr. Paker Farooq, Counsel for the Petitioners Mr. Vimal Kumar Jain, Counsel for the Respondents **** Per Court :- This petition has been filed by the petitioners challenging the order passed by the Board of Revenue for Rajasthan, Ajmer dated 27.09.2000 dismissing two revision petitions bearing Nos.114/1997 & 115/1997 filed against the order dated 04.02.1997 of the Divisional Commissioner deciding two appeals bearing Nos. 24/1995 & 25/1995. Relevant facts for consideration are that the father of the petitioners and the respondent No.2 was the Khatedar of the agricultural land measuring 48.10 bigha and had 1/4th share in the same. After the death of Radha Kishan, the father of the petitioners and the respondent No.2 mutation No.390 of the aforesaid land was recorded in the name of Ram Karan, the respondent No.2 herein. Ram Karan sold 8.05 bigha of land to Mangi Lal, the respondent No.3 by means of a registered sale- deed on 29.09.1973. In consequence of the aforesaid sale- -2- CWP 455/.2002 Kashalliya & Ors. Vs. State & Ors. deed a mutation No.881 dated 21.06.1989 was sanctioned and recorded in favour of the purchaser. Against the mutation No.390 dated 12.06.1973 in favour of Ram Karan the respondent No.2, the petitioners, herein filed an appeal in the year 1994 after 21 years before the Sub Divisional Officer. Mangi Lal was not impleaded as party to the aforesaid appeal. This appeal was allowed by Tehsildar, Sikrai vide order dated 10.10.1994. In pursuance of the aforesaid order dated 10.10.1994 mutation No.390 was re- recorded in favour of all the heirs of Radha Kishan, the erstwhile Khatedar. Thereafter, an appeal came to be filed against the mutation No.881 entered in favour of Mangi Lal, the purchaser of the portion of the land from Ram Karan, which came to be allowed vide judgment dated 28.06.1995. Mangi Lal (respondent No.3) preferred two appeals against the order dated 10.10.1994 and 28.06.1995 being appeals No.24/1995 and 25/1995. The Additional Divisional Commissioner vide its judgment dated 04.02.1997 decided both these appeals. So far as the appeal against the mutation No.881 was concerned, the same was allowed and it was held that mutation entry in favour of Mangi Lal based upon the registered sale-deed in his favour would be maintained. As against the appeal the order dated 10.10.1994 in -3- CWP 455/.2002 Kashalliya & Ors. Vs. State & Ors. respect of mutation No.390 is concerned, it was held that so far as the balance land apart from the land sold under the registered sale-deed dated 29.09.1973 in favour of Mangi Lal is concerned, all the legal representatives and heirs of deceased Khatedar Radha Kishan are entitled to have their names mutated in their favour in respect of the same. Being dissatisfied, the petitioners preferred two revision petitions before the Board of Revenue for Rajasthan, Ajmer, which have been decided by the impugned order dated 27.09.2000 and both the revision petitions have been dismissed by the Board of Revenue for Rajasthan and, consequently, the present writ petition. Learned counsel for the petitioners contended that so far as the sale-deed executed in favour of Mangi Lal and as a result of which on 29.09.1973 mutation entry No.881 was sanctioned in favour of Mangi Lal is concerned, the same is void-ab-initio, as the sale-deed itself was void as Ram Karan alone was not entitled to sell the land belonging to Radha Kishan. Learned counsel appearing for the respondents, on the other hand, submitted that the present proceedings arise out of the appeal preferred against the mutation being made in favour of Mangi Lal and Ram Karan. It has been further submitted by the learned counsel that as far as mutation entries are concerned, there are merely -4- CWP 455/.2002 Kashalliya & Ors. Vs. State & Ors. fiscal entries and do not confer any rights. If at all, the petitioners wanted to challenge the sale-deed in favour of the purchaser Mangi Lal course open for the petitioner was for filing the suit for relief or declaration that the sale-deed be declared to be null and void as the sale-deed is not void ab initio but voidable. Merely challenging the mutation entries which are only fiscal and do not confer any rights cannot help the petitioner. It was further submitted by the learned counsel that this relief could not have been granted by the Revenue Court, as in terms of Section 207 read with entries in the Schedule this suit for declaration and cancellation of the sale-deed and, consequential, relief does not lie with the Revenue Court and it is only the Civil Court, which is competent to grant such a relief. Therefore, learned counsel for the respondents submitted that the learned Revenue Courts had no jurisdiction to grant the relief, which was sought for and, accordingly, the appeals and the subsequent revisions against the appellate order were rightly dismissed. I have given my thoughtful consideration to the rival submissions. It is a well settled that so far as the relief of cancellation of sale-deed is concerned or the declaration that the sale-deed is void could only be granted by the Civil Court -5- CWP 455/.2002 Kashalliya & Ors. Vs. State & Ors. and not by the Revenue Court as in the settled position of law. Admittedly, in the present case, the petitioners did not challenge the validity of the sale-deed by means of a suit and it is not enough to say that the sale was void ab initio. A sale by a coparcerner of share exceeding his own share is not void but voidable. In that view of the matter, merely challenging the fiscal entries of mutation made in favour of the respondent No.3 Mangi Lal the relief of declaration that the sale-deed be declared void, as contended by the learned counsel for the petitioner in these proceedings could not have been granted by the revenue courts. Moreover, the Revenue Court, as was submitted by the learned counsel for the respondents had no jurisdiction to grant such a relief of declaration and cancellation of sale-deed to be void as it could only be granted by the civil court. Accordingly, in the facts and circumstances of the present case it cannot be said that the judgment of the learned Additional Commissioner dismissing the appeal so far as it related to the mutation entry No.881 in favour of Mangi Lal, the purchaser cannot in any manner be said to be erroneous or the contrary to law. The same calls for no interference in the writ jurisdiction under Article 226 of the Constitution of India. As regards mutation entry No.390 for remaining portion of the land the petitioners have been held to be entitled -6- CWP 455/.2002 Kashalliya & Ors. Vs. State & Ors. to have their names mutated with the equal share, along with the respondents, the heirs of Radha Kishan deceased Khatedar. In the facts and circumstances, there is no merit in this writ petition. The writ petition is, accordingly, dismissed. The stay applications bearing Nos.316/2001 & 1452/2003, filed therewith also stand dismissed. (Dalip Singh) J. Ashok/