RAM KISHAN Vs. RAM DAI

JUDGEMENT

(1.) By way of filing this writ petition, a challenge has been led to the impugned judgment and decree dtd. 21/7/2004 passed by the Revenue Appellate Authority (for short, 'the RAA') by which the appeal filed by the petitioner against the ex-parte judgment and decree dtd. 9/5/2002 passed by the Assistant Collector, Bayana has been rejected, and the aforesaid ex-parte judgment and decree has been upheld.

(2.) Aggrieved by the judgment dtd. 21/7/2004 passed by the RAA, the petitioner submitted a second appeal under Sec. 224 of the Rajasthan Tenancy Act, 1955 (for short, 'the Act of 1955') before the Board of Revenue (for short, 'the Board'), however, the same was also rejected vide impugned judgment and decree dtd. 22/9/2020. Submissions by the Petitioner:-

(3.) Counsel for the petitioner submits that a suit for declaration and permanent injunction under Ss. 88-89 and 188 of the Act of 1955 was submitted by the respondent-plaintiff (hereinafter referred to as "respondent") against the petitioner-defendant (hereinafter referred to as the "petitioner") before the Assistant Collector, wherein after service, the petitioner submitted a written statement. Counsel submits that the suit was dismissed in default on 19/7/1999 for non-appearance of the respondent. However, the said suit was restored back on 22/12/1999. Counsel submits that once again the suit was dismissed on 30/3/2000 for nonpayment of cost and failure to produce any evidence by the respondent. Counsel submits that an appeal was preferred by the respondent, against the order dtd. 30/3/2000 before the RAA. Counsel submits that the RAA vide its order dtd. 23/11/2001 quashed and set aside the order dtd. 30/3/2000 passed by the Assistant Collector and remanded the matter back to the Assistant Collector for deciding the suit on its merit, after providing due opportunity of hearing to the parties. Counsel submits that after the matter was remanded by the RAA, notices were issued to the petitioner. However, the notices were allegedly affixed at the conspicuous place of his house, however, the Process Server did not obtain signature of any witness, who identified the house of the petitioner. Consequently, there was no compliance of the provisions contained under Order 5 Rule 17 CPC. Subsequently, on 8/4/2002, the Assistant Collector initiated ex-parte proceedings and allowed the suit for declaration and permanent injunction vide the impugned judgment and decree dtd. 9/5/2002. Counsel submits that the petitioner submitted an appeal under Sec. 96(2) CPC before the RAA to set aside the ex-parte decree and to remand the matter to the Assistant Collector for fresh adjudication of the suit, after affording due opportunity of hearing to the parties. However, the said appeal was rejected vide order dtd. 21/7/2004 both on merit as well as on technical count. Counsel submits that the technical count on which the appeal submitted by the petitioner was rejected was that, after remand of the matter by the RAA vide order dtd. 23/11/2001, the petitioner neither submitted any written statement nor any issues were framed. Hence, the order passed by the Assistant Collector was upheld. Counsel submits that against the aforesaid judgment and decree dtd. 21/7/2004, the petitioner preferred second appeal before the Board which was also rejected vide impugned judgment and decree dtd. 22/9/2020. Counsel submits that the present case involves an important question of right, title and interest of the petitioner, which requires to be adjudicated by the trial Court. Therefore, the judgments passed by the RAA and the Board are liable to be quashed and set aside and the matter be remitted to the Assistant Collector to decide the suit afresh in accordance with law, after hearing the petitioner's contentions. Submissions by the Rival Side:-