1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.3561/2000. : : Ram Sahai Vs. Mst. Hanumani & Anr. : : Date of Order 21.4.2009 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr. Anil Kumar for the petitioner. Mr. Nitin Jain for the respondent No.1. Heard learned counsel for the parties. 2. This writ petition has been filed challenging the order passed dated 19.8.1994 passed by Board of Revenue by which the Board of Revenue has set aside the order passed by Additional Divisional Commissioner, Ajmer dated 9.8.1989 and restored the order passed by SDM, Malpura dated 7.8.1986. The SDM, Malpura by aforesaid order dated 7.8.1986 accepted appeal preferred by respondent herein and set aside the mutation entry attested in favour of petitioner by Tehsildar. 3. Shri Anil Kumar, learned counsel for the petitioner has argued that name of respondent No.1 was entered in 2 revenue record for only ¼ share, which was granted to her even in attested mutation entry. It is contended that father- in-law of petitioner and Kistoor Chand were both sons of Baldev, who originally held land. Land in dispute was entered in the name of Kistoor Lal, who died issueless. Petitioner was taken in his adoption and petitioner's name was recorded in ration card and voter list during his life time. After his death ‘Pagadi Dastoor’ as per the Hindu custom was also held taking the petitioner as his adopted son. It was after making enquiry and satisfying himself about correctness of these facts that Tehsildar on the report of Patwari attested mutation. If at all respondent wanted to dispute correctness of mutation entry, it was for her to file a civil suit. The remand of the matter to Tehsildar by SDO vide his order dated 7.8.1986 was bad in law, therefoer, the order passed by SDO is liable to be set aside. Learned counsel also submitted that Board of Revenue erred in law in rejecting the review petition filed by petitioner vide its order dated 17.6.2000 merely because pursuant to remand order, the Tehsildar had sanctioned a fresh mutation in favour of respondent No.1 on 20.10.1998. It is contended that this development could not render the review petition infructuous. The impugned order be, therefore, set aside and 3 the order passed by Additional Divisional Commissioner be restored and consequently the mutation as originally attested be kept intact. It is contended that appeal filed by respondent before SDO was barred by limitation and the same was filed with delay of 14 months. The respondent No.1 did not lead any evidence that petitioner was not adopted son of Kistoor Chand, therefore, there was no case for remand of the matter. 4. Shri Nitin Jain, learned counsel for the respondent No.1 opposed the writ petition and submitted that mutation was attested pursuant to remand order in favour of petitioner even on 20.10.1998. Petitioner did not utter a single word about that mutation in this writ petition and this fact was brought to the notice of the Court by respondent. It is contended that neither the Patwari nor the Tehsildar in view of provisions contained in Rule 123 and 124 of Rajasthan Land Revenue (Land Records) Rules, 1957 could straightway attest the mutation in favour of petitioner. Remand of case of petitioner has fructified by fresh mutation order which has already been passed on 7.8.1986. The order having now been implemented is now not open to challenge. 4 5. This Court is called upon to decide about correctness of order passed by SDO in appeal filed by respondent by which an question regarding mutation attested in favour of petitioner matter was remanded back with direction to make a fresh enquiry and pass fresh order after hearing both the parties. Contention that appeal was filed with delay of 14 months and, therefore, the appeal of respondent No.1 ought to be rejected rather than being examined on merits, cannot be accepted because the respondent being an illiterate lady has contended that she remained unaware of attested mutation for petty long time. It is when the petitioner demanded his share that she made enquiries from the Patwari and came to know about the same and she thereafter obtained copy and filed appeal. Moreover, all the Courts below, right from SDO to Board of Revenue, have decided matter on merits. Such order cannot be interfered only because the SDO decided to condone the delay and entertain the appeal on merits. 6. The argument of petitioner that respondent No.1 should have filed a suit for declaration that adoption of petitioner was illegal, would equally be available to petitioner because the petitioner could also file a suit for getting himself 5 declared as adopted son of deceased Kistoor Chand. He is insisting that this could be decided only by Civil Court, if accepted would mean that what has been decided by Tehsildar on the report of Patwari would get a precedence over the decision of Civil Court and that on the basis of mere ‘Pagri Dastoor’ or entry of his name in ration card or voter list, petitioner could not be taken as adopted son of Kisoor chand and the respondent, who is wife of his nephew, is the direct decedents of Baldev of both Kistoor Chand and father- in-law of respondent No.1 would have no share. Such contention cannot be considered because petitioner himself has not gone to Civil Court for getting himself declared as adopted son. Now when a fresh mutation entry has been attested on 18.1.1983, the submission of learned counsel appearing for the respondent No.1 that petitioner if wanted to avail remedy before the Civil Court, appears to be well founded. I, therefore, do not find any merit in this writ petition, which is accordingly dismissed. (MOHAMMAD RAFIQ)J. A.Arora/- Item No.H/36.