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Smt. Mohan Kanwar and ors. Vs. the Board of Revenue and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 685 of 1974
Judge
Reported in1983WLN(UC)131
AppellantSmt. Mohan Kanwar and ors.
RespondentThe Board of Revenue and ors.
DispositionPetition allowed
Excerpt:
.....an-effective decree can be passed, if the plaintiffs case is found to be justified on merits, the board of revenue was in error in holding that the appeal before it had abated as a whole. of course, the appeal has abated against the respondents who died during the pendency of the first appeal or the second appeal and whose legal representatives have not been brought on the record.;writ allowed - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and..........vacated and the possession of the dispute fields was handed over to the plaintiff. on appeal, the revenue appellate authority, udaipur, by his judgment and decree dated january 13, 1965 set aside the decree passed by the trial court and accepted the appeal preferred by khumansingh and the legal representatives of shokatali, who had by then expired. the revenue appellate authority held that the plaintiff's suit was barred by limitation and further that the suit was not maintainable as the cause of action for filing the suit was lost to the plaintiff on account of the resumption of jagir lands by the state government in the year 1958. it was also held that the plaintiff was unable to establish the identity of the lands.4. the plaintiff dulhesingh filed a second appeal before the board of.....
Judgment:

Dwarka Prasad Gupta, J.

1. This writ petition has been filed against the order passed by the Board of Revenue for Rajasthan at Ajmer dated December 13, 1973, dismissing the second appeal preferred by Dulhesingh before it, on the ground that the appeal had abated as a whole.

2. Some facts may be narrated here in order to appreciate the circumstances in which the question of abatement arose before the Board the Revenue. Dulhesingh filed a suit for ejectment in the court of Assistant Collector, Udaipur, against Khumansingh, Aksheysingh, minor son of Khumansingh, Shokatali and 15 other persons, alleging that the plaintiff was the Khatedar tenant of the lands in dispute and that he was dispossessed of the said lands by the defendant No. 1 with the help of his agents defendants No. 1 to 5 and that defendants No.6 to 16 were in unlawful possession of the disputed lands with the consent and connivance of defendant No. 1. It was further alleged by the plaintiff that the fields mentioned at Nos. 1 to 45 in the Schedule annexed to the plaint were controlled by the defendant No. 1 and his minor son defendant No. 17 Aksheysingh; while defendants No. 6 to 16 were in possession of the same on their behalf. It was also alleged that defendant No. 18 Shokatali was in possession of the field specified at Nos. 46 to 84 in the Schedled annexed to the plaint and that during the settlement operations the defendant No. 1 got the fields Nos. 1 to 45 entered in the name of defendant No. 17 in the record of rights, while the defendants No. 18 Shokatali got his name entered in respect of fields Nos. 46 to 84. Only some of the defendants filed a written-statement including defendant Nos. 1, 17 and 18 and it was denied that the plaintiff was ever in possession, either as an owner or a khatedar tenant, of the lands in dispute. The answering defendants asserted that all the lands in dispute were part of the Jagir lands of defendant Nos 17 Aksheysingh and were in his khudkasht. According to defendants, fields No. 1 to 45 were in possession of Aksheysingh defendant Mo. 17 while fields mentioned at S.Nos. 46 to 84 were in possession of Shokat-ali, to whom a patta was granted in respect of such lands on behalf of defendant No. 17. In the additional pleas, the answering defendants stated that she lands in dispute were part and parcel of the Jagir of Aksheysingh defendant No. 17 and in accordance with the decision of the Assistant Settlement Officer the said lands have been entered as khudkast of defendant No. 17.

3. The Sub-Divisional Officer, Udaipur, by his judgment and decree cated November 18, 1964 held that the plaintiff was in possession of the fields in dispute upto Ashad Sud 15 Samvat 2008 and thereafter he was forcibly dispossessed and the defendants No. 17 and 18 admitted that they were in possession of the fields No. 1 to 45 and 46 to 84 respectively. The trial court decreed the suit for possession and directed the defendants No. 1, 17 and 18 to pay compensation in respect of their unlawful possession until the trespass was vacated and the possession of the dispute fields was handed over to the plaintiff. On appeal, the Revenue Appellate Authority, Udaipur, by his judgment and decree dated January 13, 1965 set aside the decree passed by the trial court and accepted the appeal preferred by Khumansingh and the legal representatives of Shokatali, who had by then expired. The Revenue Appellate Authority held that the plaintiff's suit was barred by limitation and further that the suit was not maintainable as the cause of action for filing the suit was lost to the plaintiff on account of the resumption of Jagir lands by the State Government in the year 1958. It was also held that the plaintiff was unable to establish the identity of the lands.

4. The plaintiff Dulhesingh filed a second appeal before the Board of Revenue challenging the decision passed by the Revenue Appellate Authority Udaipur. One of the defendants Mohansingh appears to have expired during the pendency of the first appeal before the Revenue Appellate Authority, while 5 other defendants, namely, Shri Narain s/o Parasram, Bhera s/o Dola, Galla s/o Vena, Kika s/o Roda and Kana s/o Uda died during the pendency of the second appeal before the Board of Revenue. When the second appeal came up for hearing before the Board of Revenue, it was discovered that 5 respondents have died during the pendency of the appeal and it was urged on behalf of the defendant-respondents before the Board of Revenue that on account of expiry of the aforesaid 5 persons during the pendency of the second appeal, without bringing their legal representatives on record, the appeal had abated as a whole and the same could not be heard and decided on merits. It was urged by the learned counsel for the appellant before the Board of Revenue that the main contesting defendants were only defendants No. 1,17 and 18 and an effective decree could be passed against them and the remaining defendants were only proforma defendants and the failure to bring their legal representatives on record is not fatal to the maintainability of the appeal and no abatement of the appeal was brought about on account of the death of any of the other defendant-respordents during the pendency of the second appeal. It was also argued that one of the defendants Mohansingh had died during the pendency of the first appeal before the Revenue Appellate Authority and that if the decree passed by the trial court would be taken to have been passed against all the defendants in the suit, then the death of Mohansingh should have caused the abatement of the first appeal as a whole, while it was pending before the Revenue Appellate Authority. On the other hand, the respondents urged that the decree was passed against all the defendants, including the deceased defendant-respondents and as the Revenue Appellate Authority had reversed the decree passed by the trial court, the passing of a decree by the second appellate court in favour of the plaintiff would result in two inconsistent decrees, and as such it was submitted that the appeal should be treated to have abated as a whole. The Board of Revenue accepted the contention of the respondents and held that the decision of the appeal on merits in favour of the appellant Dulhesingh would result in two inconsistent decrees and that the appeal could not proceed in the absence of the legal representatives of the deceased defendant-respondents and that the appeal abated as a whole.

5. In this Court, the same arguments have been advanced by the learned counsel for the parties as were submitted before the Board of Revenue. A perusal of the record shows that the Board of Revenue failed to take into consideration the pleadings of the parties which was necessary in order to find out whether passing a decree in favour of the plaintiff at the second appellate stage would result in passing two inconsistent decrees. I have already referred to the substance of the pleadings of the respective parties and it appears that the parties were agreed that the respondents No. 1, 17 and 18 were in possession of the disputed lands. The dispute between the parties in the suit was as to whether the plaintiff was a khatedar tenant of ail the lands in dispute and whether he was unlawfully dispossessed from such lands by the defendant No. 1 through the other defendants and further whether the possession of defendants No. 17 and 18 on the disputed fields was unlawful and they are trespassers. It is significant to note that the trial court, in the first portion of the operative part of its judgment, stated that the suit for possession was decreed against 'the defendants', yet in the second portion of the same order it was stated that the defendants No. 1,17 and 18 were liable for payment of compensation to the plaintiff until recovery of possession and also in respect of payment of costs of the suit. It is not the case of either party that the defendants No. 2 to 16 were in possession of the disputed fields and that is why the trial court did not direct payment of compensation from the defendants No. 2 to 16 until recovery of possession. It is also significant to note that the first appeal was preferred by defendant No. 1 Khumansingh and the legal representatives of defendant No. 18 Shokatali as Shokatali appears to have expired by then. The Board of Revenue fell into error in observing that the decree for possession was passed against all the defendants and all the defendant-respondent had appealed against that decree. It appears that the learned members of the Board of Revenue did not closely peruse the pleadings of the parties and the judgment of the lower revenue courts. The question of passing two inconsistent decrees could arise only if one of the revenue courts would have found as a fact that any of the defendants No. 2 to 16 were in possession of one or the other of the fields in question and at the second appellate stage there might have been the possibility of coming to a different conclusion.

6. The first appellate court had allowed the appeal preferred by Khumansingh and the legal representatives of Shokatali on three grounds, namely, that the suit was barred by time, that the suit was not maintainable as the cause of action for filing of the suit was lost on account of the resumption of the Jagir and farther that the plaintiffs were not able to establish the identity of the lands in dispute. No finding was arrived at by the first appellate court that any one of the defendant-respondents No. 2 to 16 were in possession of the lands in dispute, as the question regarding the merits of the plaintiff's claim does not appear to have been decided by the Revenue Appellate Authority, As the Board of Revenu. has not decided the second appeal on merits, I do not want to express any opinion in respect of the questions decided by the Revenue Appellate Authority, as it would be for the Board of Revenue to consider those questions. But what I am endeavouring to emphasise is that the suit for possession having been dismissed by the first appellate court, the Board of Revenue ought to have taken into consideration the question as to whether the plaintiff can obtain the reliefs granted by the trial court in the absence of the deceased defendants. The question of passing two inconsistent decrees could only arise if there would have been a finding by the trial court or the first appellate court that any of the defendants No. 2 to 16 were in possession of one or more of the fields in dispute and the question of dispossession of the defendants No. 2 to 16 from such portion of the lands in dispute might be involved when both the parties are agreed that the defendants No. 17 was in possession of fields No. 1 to 45, while fields No. 45 to 84 were claimed to be in possession of defendants No. 18, the only questions which require determination relate to the right and interest of the plaintiff in the lands in dispute and as to whether the defendants No. 17 and 18 were in unlawful possession over the fields on which they are admittedly in possession. The Board of Revenue foiled to take into consideration the Admission of defendants No. 17 and 18 in their written-statement wherein it has been clearly stated that defendants No. 17 was in possession of fields No. 1 to 45 mentioned in the Schedule annexed to the plaint and defendant No. 18 was in possession of fields No. 46 to 84, on the basis of a patta granted to him on behalf of defendants No. 37. As already mentioned above, the legal representatives of defendant No. 18 Shokatali have already been brought on the record, while Khuman Singh and Aksheysingh were also present on the record before the Board of Revenue. In face of the averments made by the parties in their pleadings and the findings given by the trial court, it does not appear to me that any question of passing two inconsistent decrees seriously arose in the case.

7. It may also be observed here that Dhulhesingh plaintiff-petitioner died during the pendency of this writ petition and his legal representatives, Smt. Mohan Kanwar and others, have been brought on the record as petitioners in this writ petition. The defendant Khumansingh also expired during the pendency of the writ petition and his legal representatives have likewise been brought on the record.

8. As the question of passing two inconsistent decrees did not arise in this case and as the persons against whom an effective decree can be passed, if the plaintiffs case is found to be justified on merits, the Board of Revenue was in error in holding that the appeal before it had abated as a whole. Of course, the appeal has abated against the respondents who died during the pendency of the first appeal or the second appeal and whose legal representatives have not been brought on the record. Learned counsel for the petitioner submitted that it was not necessary for the petitioners to proceed against the other defendants, except defendant No. 17 and the legal representatives of defendant No. 18. The petitioners, if they so desire, may move an application before the Board of Revenue, for deletion of the names of the other defendants from the arry of respondents, except defendants No. 1 and 17 and the legal representatives of defendant No. 18, who are also on record before the Court. The Board of Revenue will proceed to decide the second appeal on merits.

9. In the result, the writ petition is allowed. The order passed by the Board of Revenue for Rajasthan at Ajmer dated December 13, 1973 is set aside and the case is remanded to the Board of Revenue with the direction that the second appeal should be decided by it on merits. As the suit for possession was filed by Dhulhesingh as far back as in the year 1958, the Board of Revenue is directed to decide the second appeal within a period of four months. The parties are left to bear their own costs.


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