MOHAN KANWAR Vs. BOARD OF REVENUE

JUDGEMENT

(1.) THIS writ petition has been filed against the order passed by the Board of Revenue for Rajasthan at Ajmer dated December 13, 1973, dismissing the second appeal preferred by Dulhesingh before it, on the ground that the appeal had abated as a whole.

(2.) SOME facts may be narrated here in order to appreciate the circumstances in which the question of abatement arose before the Board the Revenue. Dulhesingh filed a suit for ejectment in the court of Assistant Collector, Udaipur, against Khumansingh, Aksheysingh, minor son of Khumansingh, Shokatali and 15 other persons, alleging that the plaintiff was the Khatedar tenant of the lands in dispute and that he was dispossessed of the said lands by the defendant No. 1 with the help of his agents defendants No. 1 to 5 and that defendants No.6 to 16 were in unlawful possession of the disputed lands with the consent and connivance of defendant No. 1. It was further alleged by the plaintiff that the fields mentioned at Nos. 1 to 45 in the Schedule annexed to the plaint were controlled by the defendant No. 1 and his minor son defendant No. 17 Aksheysingh; while defendants No. 6 to 16 were in possession of the same on their behalf. It was also alleged that defendant No. 18 Shokatali was in possession of the field specified at Nos. 46 to 84 in the Schedled annexed to the plaint and that during the settlement operations the defendant No. 1 got the fields Nos. 1 to 45 entered in the name of defendant No. 17 in the record of rights, while the defendants No. 18 Shokatali got his name entered in respect of fields Nos. 46 to 84. Only some of the defendants filed a written -statement including defendant Nos. 1, 17 and 18 and it was denied that the plaintiff was ever in possession, either as an owner or a khatedar tenant, of the lands in dispute. The answering defendants asserted that all the lands in dispute were part of the Jagir lands of defendant Nos 17 Aksheysingh and were in his khudkasht. According to defendants, fields No. 1 to 45 were in possession of Aksheysingh defendant Mo. 17 while fields mentioned at S.Nos. 46 to 84 were in possession of Shokat -ali, to whom a patta was granted in respect of such lands on behalf of defendant No. 17. In the additional pleas, the answering defendants stated that she lands in dispute were part and parcel of the Jagir of Aksheysingh defendant No. 17 and in accordance with the decision of the Assistant Settlement Officer the said lands have been entered as khudkast of defendant No. 17.

(3.) THE plaintiff Dulhesingh filed a second appeal before the Board of Revenue challenging the decision passed by the Revenue Appellate Authority Udaipur. One of the defendants Mohansingh appears to have expired during the pendency of the first appeal before the Revenue Appellate Authority, while 5 other defendants, namely, Shri Narain s/o Parasram, Bhera s/o Dola, Galla s/o Vena, Kika s/o Roda and Kana s/o Uda died during the pendency of the second appeal before the Board of Revenue. When the second appeal came up for hearing before the Board of Revenue, it was discovered that 5 respondents have died during the pendency of the appeal and it was urged on behalf of the defendant -respondents before the Board of Revenue that on account of expiry of the aforesaid 5 persons during the pendency of the second appeal, without bringing their legal representatives on record, the appeal had abated as a whole and the same could not be heard and decided on merits. It was urged by the learned counsel for the appellant before the Board of Revenue that the main contesting defendants were only defendants No. 1,17 and 18 and an effective decree could be passed against them and the remaining defendants were only proforma defendants and the failure to bring their legal representatives on record is not fatal to the maintainability of the appeal and no abatement of the appeal was brought about on account of the death of any of the other defendant -respordents during the pendency of the second appeal. It was also argued that one of the defendants Mohansingh had died during the pendency of the first appeal before the Revenue Appellate Authority and that if the decree passed by the trial court would be taken to have been passed against all the defendants in the suit, then the death of Mohansingh should have caused the abatement of the first appeal as a whole, while it was pending before the Revenue Appellate Authority. On the other hand, the respondents urged that the decree was passed against all the defendants, including the deceased defendant -respondents and as the Revenue Appellate Authority had reversed the decree passed by the trial court, the passing of a decree by the second appellate court in favour of the plaintiff would result in two inconsistent decrees, and as such it was submitted that the appeal should be treated to have abated as a whole. The Board of Revenue accepted the contention of the respondents and held that the decision of the appeal on merits in favour of the appellant Dulhesingh would result in two inconsistent decrees and that the appeal could not proceed in the absence of the legal representatives of the deceased defendant -respondents and that the appeal abated as a whole.