CHANDU Vs. HARDAYAL

JUDGEMENT

(1.) THE plaintiff -appellant Chandu instituted a suit for declaration against Hardayal, Moti, Moman and Birbal (respondents No. 1, 2, 3 and 4 respectively) on September 26, 1961 in respect of certain agricultural land. It was prayed that declaration may be made to the effect that plaintiff is the Khatedar of the agricultural land in dispute and that transfer order No. 10 dated May 1, 1961 is null and void. It was further prayed that the defendants be restrained from transferring the lands in suit. Respondent No. 4 (Birbal) admitted the claim of the plaintiff in his written statement dated July 18, 1962. Respondents No. 1 to 3 contested the suit on various grounds. After recording the evidence, the suit was decided in favour of the plaintiff vide judgment dated July 15, 1963 and an appeal was preferred before the Revenue Appellate Authority, Bikaner. The Revenue Appellate Authority Bikaner, vide judgment dated December 22, 1964 set aside the judgment and decree and remanded the case for striking out an issue to the effect 'Whether the plaintiffs father Patu - - Ganpat was adopted to Khumana, who was lawful Khatedar of the lands in dispute' and suggested a reference to be made to the Civil Court and after receiving the finding on the same to decide the case afresh.

(2.) AFTER remand, an issue as directed by the appellate court was struck and it was referred to Munsif, Bhadra for decision. The learned Munsif decided the issue holding that Patu - - Ganpat was the legally adopted son of Khumana vide his judgment dated September 17, 1965. After the receipt of the finding, the Revenue Court framed an additional issue in accordance with the direction given by the Revenue Appellate Authority. The Revenue Court decreed the suit of the plaintiff declaring that the plaintiff is the sole Khatedar of the lands in dispute and the defendants have no share in them. It further declared that the transfer order No. 10 dated May 1, 1961 is null and void. Against this decision, respondents No. 1 to 3 preferred the appeal and the learned Additional Distt. Judge, Sri Ganganagar accepted the appeal and dismissed the suit. Being dissatisfied with the judgment of the learned Additional (Distt. Judge dated December 6, 1968, the plaintiff has filed this appeal as aforesaid.

(3.) ON April 11, 1980, learned Counsel for the appellant had moved an application, (below the signatures of the Counsel, the date mentioned in the application is March 3, 1980,) under Order 22 Rule 4 Rule/w 11 C.P.C. stating that the names of respondents No. 2 and 3 be struck off and in their place, the names of their legal representatives may be brought on record. Another application under Order 22 Rule 9 Rule/w 11 C.P.C. was also made on April 11, 1980 (below the signatures of the Counsel, the date mentioned is March 3, 1980) stating that the abatement of the appeal on account of the death of respondents No. 2 and 3 may be set adise and the legal representatives of the deceased respondents may -be brought on record. The third application under Section 5 of the Limitation Act was made on April 11, 1980 (below the signatures of the Counsel, the date mentioned is March 3,1980) stating that the delay in filing the application for bringing the legal representatives of the deceased respondents Moti and Moman be condoned as the appellant due to ignorance about the death of Moman as also due to ignorance of law was prevented by sufficient cause from filing the application for bringing the legal representatives on record. All the aforesaid applications are supported by the affidavit of the plaintiff -appellant Chandu. In para 4 of the affidavit, which was filed in support of the application under Section 5 of the Limitation Act, the plaintiff -appellant has stated that during the pendency of the appeal, respondent No. 2 Moti and respondent No. 3 Moman had died, that Moman (respondent No. 3) had died somewhere in the year 1976 or 1977 and Moti had died in the year 1979, that the appellant could not know regarding the death of respondent No. 3 till he was informed by his counsel and that the appellant came to know for the first time regarding the death of respondent No. 3 Moman on February 23, 1980 when he received letter from his counsel. The appeal was admitted on March 17, 1969. The appellant engaged Shri B.R. Arora Advocate, as his counsel through Shri M.C. Rajwanshi, Advocate of Bhadra. Paras 4 and 5 of the affidavit of the appellant, which was filed in support of the application under Order 22 Rule 9 Rule/w 11 C.P.C. read as under: 4. that the appellant was not aware with the legal procedure and was also not in the know of the thing that in case of death of the respondent his legal representatives are to be taken on record and therefore, on account of his ignorance of law, he could not take any steps to get the legal representatives of respondents Mod and Moman taken on record.