[2025:RJ-JP:31756] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Writ Petition No.14463/2024 Bhanwarlal S/o Shri Ghansilal, R/o Village Torran Tehsil Digod District Kota ----Petitioner Versus 1. Mohanlal S/o Birdhilal, (Since Deceased) Through Legal Heirs. 1/1. Smt. Geeta Bai W/o Late Mohanlal 1/2. Devilal S/o Late Mohanlal 1/3. Rajendra Prasad S/o Late Mohanlal 1/4. Dhannalal S/o Late Mohanlal 1/5. Navan Kishore S/o Late Mohanlal 1/6. Sonu S/o Late Mohanlal, All R/o Village Torran Tehsil Digod District Kota 2. Kanhaiya Lal S/o Birdhilal R/o Village Torran, Tehsil Digod District Kota. 3. State of Rajasthan through Tehsildar Digod, District Kota. ----Respondents For Petitioner(s) : Mr. Sanjay Mehrish Mr. Rakesh Saini For Respondent(s) : Mr. Abhishek Bhardwaj JUSTICE ANOOP KUMAR DHAND Order 14/08/2025 1. By way of filing this writ petition, a challenge has been led to the three different judgments passed by the Revenue and the Appellate Courts, i.e., the judgment dated 21.09.2016 passed by the Assistant Collector, Digod by which a suit filed by the petitioner for declaration of his khatedari rights on the subject [2025:RJ-JP:31756] (2 of 13) [CW-14463/2024] land has been rejected and the suit filed by the respondents for declaration of his khatedari rights has been decreed. 2. Aggrieved against the aforesaid order, the petitioner preferred the first and the second appeal before the Revenue Appellate Authority (for short “RAA”) and the Board of Revenue (for short “the Board”) respectively, however, he remained unsuccessful and both of his appeals were rejected, hence, this writ petition has been submitted. 3. Learned counsel for the petitioner submits that the subject land belonged to one Nand Lal, who executed the registered will on 26.11.1978 in favour of the petitioner- Bhanwarlal. Learned counsel submits that on the basis of the same, the petitioner has become the owner of the subject land and a suit for declaration of Khatedari rights was submitted before the Court of Assistant Collector. Learned counsel submits that the other suit was submitted by the respondents on the basis of the will dated 14.03.1991, which was alleged to have been executed by Nand Lal in favour of the respondent Nos.1 & 2 on 14.03.1991. Learned counsel submits that the subsequent will was not registered and the same was fabricated for which an FIR was registered and the charge-sheet has been filed against the respondent Nos.1 & 2. Learned counsel submits that a specific issue, i.e., Issue No.3 was framed that whether the will dated 14.03.1991 is forged or fabricated and whether the same was prepared after the death of the khatedar Nand Lal and the defendants never remained in possession of the subject land and they do not have possession of the same. [2025:RJ-JP:31756] (3 of 13) [CW-14463/2024] 4. Learned counsel for the petitioner further submits that as per the provisions contained under Section 239 of the Rajasthan Tenancy Act, 1955 (for short “the Act of 1955”) this issue must have been remitted by the Revenue Court to the Civil Court for its determination as the Civil Court alone is competent to decide this issue, but instead of doing so, the Trial Court, i.e., the Assistant Collector decided this issue in favour of the respondents by holding that the will dated 14.03.1991 was the last and final decree of the executant. Learned counsel submits that such finding should not have been recorded by the Revenue Court in terms of Section 239 of the Act of 1955. 5. In support of his submissions, learned counsel for the petitioner has placed reliance upon the following judgments:- (1) Suraj Bhan and Others Vs. Financial Commissioner & Others reported in 2007 (6) SCC 186; (2) Jhamku (Smt.) & Anr. Vs. Devi Lal reported in 2019 (1) RRT 184; (3) Gyarsi Bai (Mst.) Vs. Board of Revenue, Ajmer & Ors. reported in 2024(1) RRT 25; and (4) Smt. Mohini Bai Vs. Board of Revenue, Ajmer (Raj.) & Ors. while deciding S.B. Civil Writ Petition No.4994/1998 on 23.07.2025. 6. Learned counsel for the petitioner, under these circumstances, submitted that the impugned judgments passed by the civil courts are not sustainable in the eyes of law and are liable to be quashed and set-aside. 7. Per contra, learned counsel for the respondents opposes the arguments raised by learned counsel for the petitioner and [2025:RJ-JP:31756] (4 of 13) [CW-14463/2024] submits that the executant Nand Lal cancelled the first will dated 26.11.1978 and this fact was mentioned in the successive will dated 14.03.1991 wherein the will was executed in favour of the respondents. Learned counsel submits that in terms of Section 62 of the Indian Succession Act, 1925, the will dated 14.03.1991 was the last and final will of the executant and by executing the last and final will, the earlier will can be revoked or cancelled, as was the case in the instant case also, wherein the earlier will was revoked and cancelled by the executant by executing second will in favour of the respondents. 8. Learned counsel for the respondents further submits that all these facts were well appreciated by all the three courts and the suit filed by the respondents was rightly allowed and the suit filed by the petitioner was rightly rejected. Learned counsel submits that if at all the petitioner is aggrieved by the will dated 14.03.1991, he could have approached the competent Civil Court for cancellation of the same, but instead of doing so, he has filed a suit for declaration, which has been rightly rejected. 9. In support of his submissions, learned counsel for the respondents has placed reliance upon the judgments passed by the Hon’ble Apex Court in the case of Jitendra Singh Vs. State of Madhya Pradesh & Ors. reported in 2021(3) RLW 2291 (SC) and the judgment of the Rajasthan High Court in the case of Narayan & Anr. Vs. Heera Lal & Ors. while deciding S.B. Civil Writ Petition No.205/2023 on 22.08.2023 at Principal Seat at Jodhpur. 10. Heard and considered the submissions made at the Bar and perused the material available on record. [2025:RJ-JP:31756] (5 of 13) [CW-14463/2024] 11. Perusal of the record indicates that both the petitioner as well as the respondents are claiming their khatedari rights on the subject land on the basis of two different wills executed in their favour by the same executant Nand Lal. 12. As per the case of the petitioner, the registered will was executed by Nand Lal in his favour on 26.11.1978 and on the basis of the same, he became the owner of the subject land and was competent to get the khatedari rights over the subject land. On the contrary, the respondents are claiming their rights on the subject land on the basis of the will dated 14.03.1991 executed by the same executant Nand Lal in their favour and on the basis of both the wills, both parties approached the court of Assistant Collector for declaration of their khatedari rights on the subject land. 13. On the basis of pleadings of both the parties, the issue No.3 “whether the will dated 14.03.1991 is forged and fabricated and whether such will was executed after the death of Nand Lal and whether the respondents-defendants were in possession of the subject land?” was framed. 14. Both the parties led their evidence and thereafter a finding was recorded by the Assistant Collector that the successive will dated 14.03.1991 was the last and final will of the executant Nand Lal, hence, other issues were decided in favour of the respondents-defendants. 15. Now, the question remains for consideration of this Court is whether the Revenue Court can record a finding in favour of other parties in terms of Section 239 of the Act of 1955. For ready reference, Section 239 of the Act of 1955 is reproduced as under:- [2025:RJ-JP:31756] (6 of 13) [CW-14463/2024] “239. Procedure when plea of proprietary right raised — (1) If in any suit or proceeding in a revenue court, a question of proprietary right in respect of land forming the subject matter of such suit or proceeding is raised and such question has not previously been determined by a civil court of competent jurisdiction the revenue court shall frame an issue on the question of proprietary right and submit the record to the competent civil court for the decision of that issue only. Explanation I. — A plea of proprietary right which is clearly untenable and intended solely to oust the jurisdiction of revenue court shall not be deemed to raise a question of Proprietary right within the meaning of this section. Explanation II.— A question of proprietary right does not include the question whether such land is 'Khudhasht'. (2) The civil court, after re-framing the issue, if necessary, shall decide such issue only and return the record together with its finding thereon to the revenue court which submitted it. (3) The revenue court shall then proceed to decide the suit accepting the finding of civil court on the issue referred to it. (4) An appeal from a decree of a revenue court passed in a suit in which an issue involving a question of proprietary right has been decided by a civil court under sub-section (2) shall lie to the court which having regard to the valuation of the suit, has jurisdiction to hear appeals from the court to which the issue of proprietary right had been referred. (5) A second appeal from a decree or order passed by a civil court in appeal under subsection (4) shall lie to the High Court on any of the grounds mentioned in section 100 of the Code of Civil Procedure, 1908 (Central Act V of 1908).” 16. The provisions contained under Section 239 of the Act of 1955 deals with the procedure when plea of proprietary right is raised. Sub-Clause (1) of this Section lays down that if in any suit or proceeding in the revenue court, a question of proprietary right in respect of land forming the subject matter of such suit or proceeding is raised and such question has not previously been determined by the civil court of competent jurisdiction the revenue [2025:RJ-JP:31756] (7 of 13) [CW-14463/2024] court shall frame an issue on the question of proprietary right and submit the record to the competent civil court for the decision of that issue only. 17. The Hon’ble Apex Court in the case of Suraj Bhan (supra) has dealt with the issue and has held that such issue is required to be decided by the competent Civil Court having jurisdiction. The Revenue Courts have no jurisdiction to decide such issue. In the aforesaid judgment also, the claim was made on the basis of the will and the genuineness of the will was disputed by other side. 18. Considering the above factual aspect of the matter, the aforesaid view was taken by the Hon’ble Apex Court in the case of Suraj Bhan (supra). 19. Subsequently, the co-ordinate Benches of this Court in the case of Jhamku (Smt.) (supra) and Gyarsi Bai (supra) has reiterated the same view and has categorically held that it is only the Civil Court, which had the jurisdiction to adjudicate the will and the validity of the will cannot be adjudicated by the Revenue Court. 20. Even this Court in the case of Smt. Mohini Bai (supra) has taken a similar view following the judgment passed by the Division Bench of this Court in the case of Laxman Singh Vs. Sayar Singh & Ors. while deciding D.B. Special Appeal Writ No.493/2020 on 07.10.2024 and it has been held in Para Nos. 4 to 15 as under:- “4. We find that the Board of Revenue and learned Single Judge both have concurrently held that once the legal status of the appellant as adopted son of late Phool Singh was disputed by the [2025:RJ-JP:31756] (8 of 13) [CW-14463/2024] defendants in the revenue suit, it fell for decision making as to whether the appellant Laxman Singh was legally adopted son of Phool Singh. 5. Learned counsel for the appellant does not quarrel with the settled legal position that if the issue pertains to declaration of legal suits, the jurisdiction lies only with the Civil Court and not with the Revenue Court. His case seems to be that the issue did not arise for consideration before the Revenue Court. 6. We are unable to accept the submission of learned counsel for the appellant. It is undisputed that the suit was filed seeking declaration of khatedari rights, which, in turn, was fundamentally premised on claim of a legal status as adopted son of late Phool Singh. The defendants however, refuted this claim and the legal status. This accordingly, give rise to an issue calling for determination. As the position of law in this regard stands well settled, in view of various decisions referred to by the learned Single Judge in its order, the jurisdiction with regard to declaration of legal status as to whether the appellant was legally adopted son of late Phool Singh lies exclusively with the Civil Court and the Revenue Court does not have jurisdiction. This legal position has been duly acknowledged under the statutory scheme of the Rajasthan Tenancy Act, 1955 (for short ‘The act of 1955’). 7. Therefore, to the extent of the finding recorded by the Board of Revenue and affirmed by the learned Single Judge that the jurisdiction with regard to declaration of legal status lies exclusively with the Civil Court and not the Revenue Court, we are not inclined to interfere with those orders. [2025:RJ-JP:31756] (9 of 13) [CW-14463/2024] 8. However, there is considerable force in the submission of the learned counsel for the appellant that even if it was held by the Board of Revenue and learned Single Judge that the jurisdiction to declare legal status lies only with the Civil Court to the exclusion of Revenue Court, the proper course to be followed was to refer the issue for determination of the Civil Court, and after findings were returned, decide the revenue suit as revenue suit not only involves the determination of legal status but also other issues. 9. In this regard, it is relevant to refer to the provisions contained in Section 239 of the Rajasthan Tenancy Act, 1955 which reads thus:- “239. Procedure when plea of proprietary right raised— (1) If in any suit or proceeding in a revenue court, a question of proprietary right in respect of land forming the subject matter of such suit or proceeding is raised and such question has not previously been determined by a civil court of competent jurisdiction the revenue court shall frame an issue on the question of proprietary right and submit the record to the competent civil court for the decision of that issue only. Explanation I. — A plea of proprietary right which is clearly untenable and intended solely to oust the jurisdiction of revenue court shall not be deemed to raise a question of Proprietary right within the meaning of this section. Explanation II.— A question of proprietary right does not include the question whether such land is 'Khudhasht'. \ (2) The civil court, after re-framing the issue, if necessary, shall decide such issue only and return the record [2025:RJ-JP:31756] (10 of 13) [CW-14463/2024] together with its finding thereon to the revenue court which submitted it. (3) The revenue court shall then proceed to decide the suit accepting the finding of civil court on the issue referred to it. (4) An appeal from a decree of a revenue court passed in a suit in which an issue involving a question of proprietary right has been decided by a civil court under sub-section (2) shall lie to the court which having regard to the valuation of the suit, has jurisdiction to hear appeals from the court to which the issue of proprietary right had been referred. (5) A second appeal from a decree or order passed by a civil court in appeal under subsection (4) shall lie to the High Court on any of the grounds mentioned in section 100 of the Code of Civil Procedure, 1908 (Central Act V of 1908).” 10. Sub-section (1) of Section 239 lays down the procedure to be adopted if any suit or proceedings in a Revenue Court, a question of proprietary right in respect of the land forming the subject matter of such suit or proceeding is raised and where such question has not previously been determined by a Civil Court or competent jurisdiction. In such an eventuality, the Revenue Court is obliged to frame an issue on the question of proprietary right and submit the records to the competent Civil Court for the decision of that issue. The Civil Court then, after re-framing the issue, if necessary, shall decide the issue only and return the records together with its findings thereon to the Revenue Court which submitted it. The provision contained in sub-section (3) further provides that the Revenue Court shall then proceed to decide the suit [2025:RJ-JP:31756] (11 of 13) [CW-14463/2024] accepting the finding of Civil Court on the issue referred to it. 11. In view of the aforesaid statutory scheme, we are of the view that even if it was a case where the Revenue Court and the learned Single Judge arrived at a conclusion that the issue as to whether the appellant was legally adopted son of late Phool Singh was required to be decided by a Civil Court and fell outside the jurisdiction of Revenue Court, the procedure prescribed under sub- section (1) of Section 239 of the Act of 1955 was required to be followed. The Revenue Court was required to frame an issue and then refer the same to the Civil Court of competent territorial jurisdiction and await the return of record together with findings of the Civil Court. 12. Learned counsel for the respondents could not dispute this legal position and requirement of Section 239 of the Act of 1955 and the procedure to be followed. 13. Accordingly, though we are not inclined to interfere with the findings of the Board of Revenue and the learned Single Judge to the extent it held that the declaration of legal status could be a subject matter of consideration of Civil Court and not the Revenue Court, an issue was required to be framed and referred to the Civil Court which is not done. Therefore, this appeal is partly allowed. 14. The Revenue Court of Assistant Collector, Sikar is directed to frame appropriate issue with regard to declaration of legal status and refer forthwith the same to the Civil Court of competent jurisdiction and then decide the matter on the basis of the findings recorded by the Civil Court. 15. Since it is an old matter, the reference of dispute shall be made by the Revenue Court at first instance [2025:RJ-JP:31756] (12 of 13) [CW-14463/2024] within a period of 30 days from the first date of hearing of the case before it. Parties are directed to appear before the Revenue Court of Assistant Collector, Sikar on 22.10.2024. Once the matter is referred to the Civil Court, it will be open for the parties to pray for expeditious disposal of the case by the Civil Court and return the finding along with the records for adjudication of all the issues pending consideration with regard to claim of khatedari rights of the appellant by the Revenue Board.” 21. Even the judgment relied by learned counsel for the respondents in the case of Jitendra Singh (supra), the Hon’ble Apex Court has also taken the same view that if there is any dispute with regard to title on the basis of the will, then the party claiming their right or title on the basis of the will are supposed to approach the appropriate civil court for crystallizing their rights and on the basis of the decision by the Civil Court, the necessary mutation entries can be made. 22. In the instant case, both parties are claiming their right title and interest on the basis of two different wills, i.e., the will dated 26.11.1978 and 14.03.1991. 23. In the considered opinion of this Court, this issue should have been remitted to the competent civil court having jurisdiction for its adjudication on its merits on the basis of evidence of both sides, but the Assistant Collector has committed an error in not remitting this issue for its adjudication to the competent civil court having jurisdiction. He has committed procedural error in terms of Section 239 of the Act of 1955. [2025:RJ-JP:31756] (13 of 13) [CW-14463/2024] 24. On this count alone, the impugned judgments passed by the trial court as well as appellate courts stand quashed and set-aside. The Assistant Collector is directed to remit the issue No.3 to the competent Civil Court having jurisdiction to decide the same expeditiously. 25. Looking to the fact that the dispute pertains to the year 2016, it is expected from the competent civil court to decide the issue within a period of three months from the date of remittance from the court of Assistant Collector, i.e., the Revenue Court. The parties are directed to appear before the Court of Assistant Collector on 29.08.2025. After recording a finding on issue No.3 by the civil court, the Assistant Collector would decide the suit expeditiously as early as possible, preferably within a period of one year thereafter. 26. Writ petition, stay application as well as all applications (pending, if any) stand disposed of. (ANOOP KUMAR DHAND),J Karan/2