1. This is a petition under Article 226 of the Constitution against the judgment of the Board of Revenue for Rajasthan, Ajmer, dated January 31, 1'970, by which it held that the appeal of the petitioners had abated, and has dismissed the appeal without giving a decision on merits.
2. One Hanuman Prasad predecessor-in-interests of respondents Nos. 2 to 9 filed a suit claiming that he was a Khatedar tenant and seeking a declaration of the same and seeking possession of the suit land. The suit was resisted by Ram Bux, the father of the petitioner No. 1 and respondents Nos. 14 to 16, and petitioners Nos. 2 and 3 and by one Ratna. Suit of he respondents Nos. 2 to 9 was dismissed by the Assistant Collector, but on appeal, it succeeded before the Revenue Appellate Authority, who by order dated July 29, 1964, decreed the suit of the plaintiffs against the defendants for a declaration that the plaintiffs be declared Khatedar tenant of Khasra Nos. 1019/1 and 1020/1. Thereafter the defendant tiled an appeal before the Board of Revenue. Before the Board of Revenue, Ram Bux had died and he was substituted by the Board by petitioner No. 1 and respondents Nos. 14 to 16 and so also before this Court. Petitioners Nos. 2 and 3 were the other defendants, who were arrayed as appellants before the Board. Ratna, the other defendant, against whom also a joint decree along with other defendants had been passed was joined as one of the respondents to the appeal.
3. Ratna died during the pendency of the appeal before the Board of Revenue. No legal representative of his was impleaded; rather the petitioners applied to the Board to delete the name of Ratna. The legal representatives of Ratna also filed an application for being impleaded in his place but the same was rejected by the Board as being time barred. When the matter came up for hearing before the Board, objection was taken that as neither Ratna nor his legal representatives were parties to the suit, the appeal had abated in toto. This has found favour with the Board and the petitioners being aggrieved have come up to this Court in writ petition.
4. It is not disputed and indeed the Board of Revenue Itself has found that the interests of the petitioners and Ratna were inseparable since the lower court had awarded a decree in favour of the plaintiff-respondent against all the defendants, including the petitioners and the deceased Ratna.
5. Section 208 of the Rajasthan Tenancy Act, 1955 provides that the provisions of the C. P. C., 1908, except provisions inconsistent with anything in this Act or provisions contained in List I of Schedule III shall apply to all suits and proceedings under the Act. It is not disputed that Fourth Schedule, Lists I and II do not exclude the applicability of Order 41. Rule 4, C. P. C. Now Order 41, Rule 4, C. P. C. says that where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all theplaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be.
6. It is apparent that in view of the Board's finding itself that the interests of the defendants-petitioners and that of defendant Ratna deceased were common and inseparable and that the decree proceeds on a ground common to them it was competent for the present petitioners to file an appeal before the Board without the necessity of joining Ratna as either one of the appellants or respondents. If Ratna had thus not been joined as one of the parties to the appeal, objection could not have been taken to the maintainability of the appeal on the ground that Ratna was not a Darty to the appeal. Does it make any difference to the maintainability of the appeal if Ratna having been joined as a respondent, subsequently dies and his legal representatives have not been brought on record? The Supreme Court has answered this question in the negative. In 1971 (1) SCC 265: (AIR 1971 SC 742), Mahabir Prasad v. Jage Ram, plaintiff Mahabir Prasad and his mother Gunwanti Devi and his wife Saroj Devi had commenced proceedings against the defendants Jage Ram and others. Having obtained a decree, they tried to get it executed; but their execution application was dismissed by the Subordinate Judge. Mahabir Prasad alone appealed against the order and impleaded Gunwanti and Saroj Devi as party respondents. Saroj Devi died during the pendency of the appeal and Mahabir Prasad got her name struck off from tbe array of respondents. The High Court dismissed the appeal on the ground that the legal representatives of Saroj Devi having not been brought on the record, the appeal abated in its entirety. The Supreme Court set aside the High Court's judgment in view of Order 41, Rule 4, C. P. C, which permitted one defendant to file an appeal when a decree proceeds on ground common to all the defendants. It may be noted that the Supreme Court distinguished its earlier decision in AIR 1963 SC 1901, Rameshwar Prasad v. Shambehari Lal, on which Mr. Agrawal, learned counsel for the respondents, has placed strong reliance. The Supreme Court noted the distinction that in Rameshwar Prasad's case, all the plaintiffs, whose suit had been dismissed, had filed an appeal and thereafter one of them had died and his heir was not brought on the record. The Supreme Court made a distinction in a case like the present where alt the decree-holders did not appeal and only one of them filed and the others were joined as party-respondents. In the present case before us, the situation is identical. Not all the defendants filed an appeal before the Board of Revenue, only petitioners did. Ratna was joined as a respondent and even if his legal representatives have not been brought on record, the benefit of Order 41, Rule 4, C. P. C. cannot be denied to the petitioners. As observed by the Supreme Court in Mahabir Prasad's case the argument of a conflict of decrees between the two courts was not accepted and the Supreme Court observed,--
'... ... ... ...Competence of the Appellate Court to pass a decree appropriate to the nature of the dispute in an appeal filed by one of several persons against whom a decree is made on a ground which is common to him and others is not lost merely because of the person who was jointly interested in the claim has been made a party-respondent and on his death his heirs have not been brought on the record.'
7. In AIR 1970 SC 108, Ratan La] Shah v. Firm Lalrnan Das Chhadamma Lal, a decree had been passed against the partnership consisting of Mohanlal and Ratanlal. Against that decree. Ratan Lal alone appealed to the High Court. Mohanlal was joined as a respondent in the appeal. He not having been served, the High Court dismissed the appeal as incompetent in absence of Mohanlal. This decision, however, was set aside by the Supreme Court by relying on Order 41, Rule 4, C. P. C. The argument that if appeal is heard there would be conflicting decisions between the parties, was rejected with the observation,--
'... ... ... ...But in the appeal filed by Ratan Lal there is no possibility of a decree being passed which may impose a more onerous liability upon Mohan Singh. The trial court has passed 3 decree against Ratan Lal and Mohan Singh jointly and severally. Mohan Singh is liable for the full amount of the claim of the plaintiffs. If the appeal filed by Ratan Lal succeeds, the court may reduce the liability of Mohan Singh, but there may conceivably be no order by the Court operating to the prejudice of Mohan Singh in the appeal.'
8. In the present case also, argument of the conflict of decrees against Ratanlal and the petitioners in case of the appeal being allowed by the Board of Revenue does not arise. A decree has been passed jointly against the petitioners and Ratna declaring respondent-plaintiffs to be Khatedar tenant. If the petitioner's appeal before the Board of Revenue failed, obviously, there is no question of conflict. Even if the appeal before the Board by the petitioners succeeds, the decree will be a decree which will enure also for the benefit of Ratna and as the interests of Ratna and the petitioners are common and inseparable, there is no question of any inconsistency or conflict or prejudice being caused to the interests of Ratna in the appeal before the Board. Mr. Agrawal has also sought to rely on AIR 1972 SC 1181, Ramagya Prasad v. Murli Prasad. This case however has no applicability. Ail that was held in the case was that in a suit for accounts and partition of partnership property, all the partners are necessary parties and if some of the respondents die and their legal representatives are not brought on record, the right to sue does not survive and the appeal fails in toto. The said case has no application to the present case. The argument, therefore, that because of the absence of Ratna or his legal representatives, the petitioners' appeal before the Board should be held to be abated in entirety, cannot be sustained. The Board of Revenue thus took a manifestly erroneous view of the law and thus failed to exprci.se jurisdiction when it refused to hear appeal on merits. We would therefore issue a writ of certiorari and quash the decision of the Board of Revenue and direct it to rehear the appeal of the petitioners on merits and dispose it of in accordance with the law and merits.
9. The petition is allowed as above, but there will be no order as to costs.