JAI SINGH Vs. HARI SINGH

JUDGEMENT

(1.) THIS is an application for review of the judgment of a Division Bench of the Board of Revenue dated 9. 11. 59. The judgment in question was delivered by a bench consisting of Shri Kanwar Bahadur and Shri, J. N. Kunzru, Members. Both of them have ceased to be attached to this Board, having proceeded on retirement and under these circumstances the application has been heard by us.

(2.) THE facts of the case leading to the application are these. THE applicants had brought a suit against the non-applicants seeking a declaration of their khatedari rights to the extent of 256 bighas out of holding of 2000 bighas held by Shri Hira Singh etc. jointly. THE trial court dismissed the suit whereupon the applicants preferred an appeal therefrom in the court of the learned Additional Commissioner, Bikaner. While the appeal was pending one of the respondents namely Tehlasingh died. Admittedly the appellants failed to bring the legal representatives of the deceased respondent on record. THE learned Additional Commissioner by his order dated 9. 8. 1958 held the appeal to have abated in toto. From this order the appellants preferred a second appeal before the Board which was again dismissed by an order of the Board which is now sought to be reviewed. It was contended before the learned bench that the Additional Commissioner was wrong in its interpretation and application of rule 4, order 22 C. P. C. This provision of law in its effect only intended to the abating of the appeal against the respondent who had died and whose legal representatives were not brought on record with the statutory period. Another contention raised was that in this case it was possible to ascertain the interest of the deceased respondent separately and therefore the appeal could proceed against the remaining respondent. Both these contentions were rejected in the order sought to be reviewed. Order 22 rule 4 was construed to have the effect of providing for the abatement of all appeals without exception in toto where legal representatives of one of the several respondents were not brought on record. It was also held that it was not necessary to ascertain the fact whether the interest of the deceased respondent could be ascertained separately from that of the remaining respondents. THE reason given was that the plaintiff himself has proceeded in his suit on the presumption that the land was held jointly by the respondents and the statements recorded by the court also showed the same thing.