SMT. CHANDA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Impugning the judgment dated November 1, 2001 of the learned Single Judge, it was canvassed on behalf of the appellants that all the legal re resentatives of deceased Brijendra were not brought on record by the Board of Revenue, Ajmer and without deciding the application dated June 13, 2000 moved on behalf of the appellant Chanda, the Board of Revenue committed illegality in rendering the judgment dated April 12, 2001. Reliance is placed on (1) Daya Ram and others Vs. Shyam Sundari and others (AIR 1965 SC 1049). It is further contended that scope of first appeal was limited as objection in regard to Order 5 Rule 17 C.P.could not have been raised before the first appellate court. In support of this contention, learned counsel placed reliance on the judgment of this Court in the case of (2) Berisal Singh Vs. Prem Chand (1953 RLW 473).

(2.) Turning on to the facts of the case, we find that on May 3, 1995 plaintiff Brijendra (now deceased) instituted a suit for declaration and perpetual injunction in the court of Sub-Divisional Officer Deeg on the ground that the suit lands were earlier in the ownership and possession of his father who died during the minority and the defendant Babu Lal (Maternal uncle of the plaintiff) was initially appointed general power of attorney by plaintiff's mother for managing the suit lands but subsequently the said power of attorney was cancelled. But during new settlement operation, the defendant managed to get the name of plaintiff removed from the revenue records. Therefore, in the suit the plaintiff made prayer to declare him as Khatedar Tenant of the lands and sought perpetual injunction against the defendant. The Sub-Divisional Officer issued summons for May 22, 1995. The process server returned the summons with an endorsement that on making refusal by the defendant, the summons got pasted on the outer part of his residential house. On the basis of the said report of the process server, the defendant was proceeded ex parte and suit of the plaintiff was decreed on June 9, 1995 (i.e. within 37 days). Thereafter, a first appeal was preferred by the defendant before the Revenue Appellate Authority, Bharatpur, which was dismissed vide judgment and decree dated October 18, 1996. The defendant then filed second appeal before the Board of Revenue, Ajmer. Learned Board of Revenue vide judgment dated April 12, 2001 allowed the second appeal and remitted the case back to the court of Sub-Divisional Officer, Deeg. Assailing the said judgment of Board of Revenue, the appellants preferred Writ Petition which was dismissed by the learned Single Judge vide judgment dated November 1, 2001.

(3.) It is not disputed that Amlesh, daughter of deceased Brijendra was already on record before the Board of Revenue and appellant Smt. Chanda (wife of deceased plaintiff) also filed an application on June 13, 2000 for bringing her on record as legal representative of the deceased. The Board of Revenue, without considering the said application, allowed the second appeal.