JEO RAJ Vs. JERIA

JUDGEMENT

(1.) This appeal has been filed against the order of the Revenue Appellate Authority, Bikaner dated 14th February, ,64 whereby it was held that the appeal of the appellants against the judgment and decree of the Assistant Collector, Jalore dated 24 -6 -60 dismissing the plaintiff -appellants suit had abated, as a whole, on the ground that the appellants had failed to bring the widow of Fagga on record, within the prescribed time.

(2.) The facts of the case are that during the pendency of the appeal Sonia respondent No. 1 and Fagga respondent No. 4 died. Fagga died sometimes in November, 1960, and an application was filed on behalf of the plaintiffs -appellants on 16 -10 -62 stating that Faggas son Poonia respondent No. 5 was already on the record, and was in possession of the field in dispute, and as there was no other heir, the deceased respondent Faggas name Shamlal be struck off and the appeal be heard in accordance with the law. As regards the respondent Sonia, an application was filed on 16 -4 -63 stating that Jeriya son of Sonia should be brought on the record as a legal representative of the deceased Sonia. In both the cases, the defendants respondents filed counter applications stating that Fagga had other heirs in addition to Poonia, namely, his widow and daughters and that Sonia had also left daughters, in addition to his son Jeria. In reply, it was admitted that Fagga had four daughters and Sonia also had four daughters. It was, however, asserted that they were married and were living with their husbands in other villages, and, as such, it was not necessary to have them brought on the record. It was contended that the estate of the deceased Fagga was duly represented by his son, who was already on the record and so was the estate of Sonia represented by his son Jeria. In support of the contention that the appeal would not abate if one of the legal representatives of the deceased was already on the record, several authorities were cited. The learned Revenue Appellate Authority came to the conclusion that in a suit for trespass, the married daughters might not be in physical possession of the field over which the trespass was alleged, but so far as the widow was concerned no such presumption could be made. Hence, relying on Roopchand vs. Mithalal (AIR 1959 Raj., page 17) the learned Revenue Appellate Authority held that the appeal had abated as a whole.

(3.) The main contention of the learned counsel for the appellants is that the learned revenue appellate authority has fallen into an error in relying on Roop Chands case. This authority does not apply to the facts and the circumstances of the present cases in as much as, in this case all the sons were in joint possession of the entire immovable property of their father and the son who was already on the record as a defendant was not the eldest son, who could represent the entire family. Their Lordships, therefore, held that the junior member, who was not alone in possession of the field could not present the entire estate. In the instant case the deceased Faggas eldest son Poonia is in possession of the entire field. He can, therefore, represent the entire estate. In support of this contention, he has sought reliance on Poonam Chand vs. Moti Lal (I.L.R. 1955 Rajasthan page 77). A detailed perusal of Roop Chands case supports the contention of the learned counsel for the appellants. In this case, a suit for the recovery of possession of the suit land against two joint trespassers, father and son, having been dismissed, the plaintiff filed an appeal against both the defendants. The father died during the pendency of the appeal, leaving behind him six sons of whom only one was on the record. An application to bring the other sons on record was dismissed as it was beyond time. It was found that the sons were in joint possession of all the immovable property, though they were living and messing separately and the son who was already impleaded as a defendant was not the eldest son. It was also found that the plaintiffs and the defendants were living in the same village, and the former had joined the funeral ceremony of the deceased defendant and he did not explain why the application to bring the sons on the record was delayed for a long time. It was held that the appeal abated, as a whole, and not only against the deceased defendant, because, in the circumstances, it could not be held that the son who was impleaded as a defendant substantially or sufficiently represented the estate of the deceased. It was observed that where one of the respondents died pending an appeal against the dismissal of a suit for recovery of possession, the broad test to determine whether the whole appeal abates is whether the continuance of the appeal would result in two inconsistent decrees, or would result in the emergence of a decree, which could be rendered futile by the other persons in possession, who are not properly before the Court.