PRABHU DAYAL Vs. BHAGWANA RAM & ORS

JUDGEMENT

(1.) By this writ petition, a challenge is made to the order dated 28.01.2014, passed by the Board of Revenue, Rajasthan, Ajmer.

(2.) Learned counsel for the petitioners submits that a revenue suit was filed by the petitioners for declaration and injunction. It was decreed in favour of the petitioners. The respondents preferred an appeal before the Revenue Appellate Authority and during pedency of the appeal, the respondent No.1/7 therein, namely Santosh Devi died on 12.09.2010. The appellants before the Revenue Appellate Authority failed to make an application under Order 22 Rule 4 CPC within the period of limitation to bring the legal heirs of Santosh Devi on record. Thus, the petitioners moved an application under Order 22 Rule 9 & 10 CPC to declare the appeal as abated. In the meanwhile, an application under Order 22 Rule 4 CPC along with an application under Section 5 of the Limitation Act was filed and both were decided by the Revenue Appellate Authority vide its order dated 29.09.2011. Therein, the appeal was abated qua the respondent No.1/7, Santosh Devi. The petitioners as well as the respondents herein preferred appeals before the Board of Revenue. So far as the petitioners are concerned, they preferred the appeal to seek abatement of the appeal itself instead of abatement of appeal qua deceased Santosh Devi. So far as the respondents herein are concerned, they challenged the order of abatement qua the respondent No.1/7 in the appeal before the Board of Revenue. Both the appeals were decided by a common order and therein, the impugned order of the Revenue Appellate Authority was set aside with acceptance of the application under Order 22 Rule 4 CPC.

(3.) Learned counsel for the petitioners submits that when Santosh Devi died on 12.09.2010, an application to bring her legal heirs on record was required to be moved within the period of 90 days and on expiry of the period, the appeal should have been abated. It can be restored on an application to be moved by the appellants under Order 22 Rule 9 CPC, but no such application was ever moved and in fact, the petitioners informed the Court about the death of Santosh Devi on 20.05.2011. Thus, they had made compliance of the order 22 Rule 10A CPC. An application to bring her legal heirs on record was thereafter moved by the respondents on 20.06.2011. It was accompanied by an application for condonation of delay under Section 5 of the Limitation Act, but finding no justification for condonation of delay, the Revenue Appellate Authority dismissed the application of the respondents and abated the appeal only qua respondent No.1/7, Santosh Devi, instead of abating the appeal as such because the claim against all the non-appellants before the Revenue Appellate Authority was same, so as the rights. Accordingly, the impugned order of the Board of Revenue may be set aside. In support of his arguments, the learned counsel for the petitioners has placed reliance on the judgment of the Apex Court in Katari Suryanarayana & Ors. Vs. Koppisetti Subba Rao & Ors., 2009 AIR(SC) 2907 and Balwant Singh(Dead) Vs. Jagdish Singh And Others, 2010 8 SCC 685.