TEJU Vs. BOARD OF REVENUE

JUDGEMENT

(1.) THIS writ petition challenges the impugned order of the Board of Revenue dated September 26, 1972 by which it held that the appeal of the petitioners had abated in entirety.

(2.) PLAINTIFF respondent filed a suit against the present petitioners and some other defendants on the allegation that the petitioners had forcibly occupied the land which the plaintiffs claim in their ownership. The disputed land was comprised in three Khatas, namely, Khata No. 116/1, Khata No. 117 and Khata No. 122/1. The defendants in their reply denied that they had forcibly occupied the land On the contrary, they pleaded that they were in occupation of the separate pieces of land for a number of years. In the written statement, the possession of different defendants to different numbers was separately mentioned as being in their possession since long. The trial court by its judgment dated April 20 1956, dismissed the suit. The appellate court accepted the appeal and remanded the case. However, the second appeal before the Board of Revenue was accepted which set aside the order of the Revenue Appellate Authority and directed it to record evidence and give a fresh decision. In pursuance of this, the Revenue Appellate Authority decided the matter afresh and gave a judgment dated September 17. 1974. By this judgment, it was held that the plaintiffs had proved their title in the suit land mentioned in Khata No. 117. Regarding Khata No. 116/1, it found that plaintiffs have failed to prove their case excepting Survey No. 2589. Regarding Khata No. 122/1, it found that the defendants have proved their possession or Survey No. 2705 and held the possession of defendants as trespasser in the rest of the land. It consequently passed a decree in favour of the plaintiffs directing that plaintiffs be put in possession of all Survey Nos. coming under Khata No. 117 and all Survey No. 2589 in Khata No. 116/1, and of all Survey Nos. excepting Survey No. 2705 in Khata No. 122/1. It also decreed that the plaintiffs be awarded compensation to the extent of three times the annual rent of the suit land which are ordered to be put to their possession from the date of the dispossession to the date of restoration.

(3.) THERE is no dispute about the order of July 21, 1971 by which it was held that the appeal shall abate so far as the deceased appellants -defendants were concerned. The only dispute is whether because of the non impleading of the legal representatives of the deceased appellants, the appeal cannot be proceeded with. The counsel for the petitioner Mr. Samdaria urges that the Board of Revenue was not right in holding that the whole appeal had abated and contends that the only result of the non impleading of the legal representatives of the deceased is that the appeal will abate qua the deceased only and not that the appeal cannot be proceeded with. In this connection, he refers us to Nanak v. Ahmed Ali AIR 1946 Lah 399 In that case, the plaintiff brought a suit for cancellation of the sale deed executed by Gumani defendant No. 1 in favour of Nanak and Khair -ud -din defendants Nos. 2 and 3. The suit was dismissed by the court of first instance. In appeal, the senior Sub Judge allowed the plaintiff's appeal and decreed his claim. Against that decree, Nanak and Khair -ud -din filed an appeal in the High Court. During the pendency of the appeal, Nanak had died and the objection was that in the absence of an application for bringing his legal representatives on record, the appeal had abated. The Full Bench, however, held that in such a case, the appeal does not abate in toto but only with regard to the deceased appellant. The Full Bench, however, held: Where a person claiming to be the true owner of certain property obtains a decree for possession of that property against trespassers, each trespasser has an independent right to appeal against the decree and the mere circumstances that one of the defendants does not appeal from the decree or even confesses judgment would not disentitle the other to appeal. In effect and in substance in a case of this type there are as many decrees for ejectment or dispossession as there are trespassers. The Full Bench also observed that: The plaintiff could have initially instituted two separate suits for declaration against Nanak and Khair -ud -Din. Either of the two suits would not have been liable to dismissal as incompetent by reason of the necessary parties not being before the Court. The mere circumstance that he could and did join the two defendants in the same suit and asked for a declaration of his title against both does not alter the nature of his claim which in effect and in substance was one for establishment of his title against each of the two defendants. In as much as the suit could, in the first instance, have been brought against Khair -ud -in without impleading Nanak, in which case he could have been entitled to appeal from the decree, without taking any notice of what happened to the suit against Nanak, I see no legal bar to the competency of an appeal by him alone, merely because the plaintiff chose to bring one suit against two persons denying his title to the suit property. This view was followed in Hari Chand and Ors. v. Mst. Bachan Kaur and Ors. AIR 1971 P&H; 355.