JUDGMENT 1. This writ petition is directed against the judgment of the Board of Revenue for Rajasthan, Ajmer dated 2nd November, 1983 and 5th June. 1984. 2. Briefly stated the facts of the case are that non-petitioner No. 5, Kanhaiyalal, filed a suit on 24th March, 1965, in the Court of the Assistant Collector, Baran. under Section of the Rajasthan Tenancy Act against Shri Krishna, Shanti Devi, Attar Bai, Rameshwar, Janki Devi and Chhitarmal. The defendants in the suit denied the averments of the plaint. The learned trial Court dismissed the plaintiff's suit by its judgment dated 31st August. 1971. Being aggrieved by the said judgment and decree of the learned Asstt. Collector. Baran, Kanhaiyalal, non-petitioner No. 5 in the writ petition, filed an appeal before the Revenue Appellate Authority, Kota. The Revenue Appellate Authority by its judgment and decree dated 28th January, 1980. accepted the appeal and set aside the judgment and decree passed by the Asstt. Collector, Baran and decreed the suit of non-petitioner Kanhaiyalal. It was declared that Kanhaiyalal is the khatedar of the land in dispute to the extent of half share & a decree was also passed for division of holding to the extent of one half share with a direction to pass a final decree. Aggrieved by the said judgment of the Revenue Appellate Authority, Shri Krishna filed a revision petition (sic appeal) before the Board of Revenue. During the pendency of the appeal, Shri Krishna, father of petitioners No. 1 to 3 and husband of petitioner No 4 expired on 10th October, 1981. The petitioners could not file an application for bringing on record the legal representatives of the deceased. Shri Krishna, as they were not living in the village Siswali where Shri Krishna died. They could not communicate to the Advocate of their father about the death of Shri Krishna. The learned Advocate for respondent, Kanhaiya Lal, raised an objection that Shri Krishna had died. On such an objection having been raised. the Board of Revenue vide its order dated 2nd November, 1983, dismissed the appeal as abated. The petitioners, after they came to know of this fact, filed an application for review of the order under Section of the Rajasthan Tenancy Act and prayed for setting aside the abatement and making the petitioners as parties in the proceedings under Order 22 read with order 1 Rule 10, Civil Procedure Code. The petitioners, after they came to know of this fact, filed an application for review of the order under Section of the Rajasthan Tenancy Act and prayed for setting aside the abatement and making the petitioners as parties in the proceedings under Order 22 read with order 1 Rule 10, Civil Procedure Code. An application under Section of the Limitation Act was also filed before the Board of Revenue. The Board of Revenue dismissed the application for review vide its order dated 5th June, 1984. It is against this order that the writ petition has been filed. 3. Through this writ petition. the petitioners have not only challenged the order of the Board of Revenue, dated 5th June, 1984, but have also challenged the order dated 2nd November, 1963. Shri Pareek, learned counsel for the petitioners, submitted that there is an error apparent on the face of the record as in the impugned order dated 5th June, 1984, a Division Bench of the Board of Revenue, failed to consider that the suit filed by the plaintiff was only a suit for division of holding and it was not a suit for declaration of half share in the Khatedari. It was also submitted that since the suit of the plaintiff was a suit for partition and, a suit for partition does not abate as the heir of the deceased party could the an application for being made a party under Order 1 Rule 10. Civil Procedure Code. It was also urged by Shri Pareek that the petitioners were entitled to bring an application under Order 1 Rule 10, Civil Procedure Code irrespective of the fact that they had not ,filed any application for bringing the legal representatives of the deceased. Shri Krishna on record In this view of the matter. there is also an error apparent on the face of the record. 4. Shri Pareek also submitted that after passing of the preliminary decree, the provisions of Order 22 Rule 3. Civil Procedure Code are not applicable. The learned counsel for the respondents vehemently opposed the contention of the learned counsel for the petitioner. He submitted that there is no proposition of law laid down by the Supreme Court or by any other High Court that in a suit for partition the provisions of Order 22. Civil Procedure Code are not applicable. The learned counsel for the respondents vehemently opposed the contention of the learned counsel for the petitioner. He submitted that there is no proposition of law laid down by the Supreme Court or by any other High Court that in a suit for partition the provisions of Order 22. Civil Procedure Code are not applicable. He urged that there is no error apparent on the face of the record and as such the writ petition itself was not maintainable. The submission of Shri Garg was that on the death of Shri Krishna the suit automatically stood abated as his legal representatives were not brought on record within time Shri Garg urged that there would be possibility of conflicting decrees against Shri Krishna to the effect that Kanhaiyalal was a Khatedar of 1/2 and the other in favour of legal representatives. It may be observed that the learned Boaid of Revenue held that the suit was for declaration of half share in the Khatedari land and for division of holding. The Board also held that it was not a suit for division of holding only The plea of possibility of conflicting decrees was taken into consideration by the Board of Revenue while dismissing the revision (sic review) petition. In view of the contention made at the Bar, the following- two questions are required to be decided:- 1. Whether there is any error apparent on the face of the record to invoke the jurisdiction of this Court under Article 226 of the Constitution of India? 2. Whether in a suit for partition and division of holding, the provisions of Order 22, Civil Procedure Code are attracted or not? 5. Regarding point No 1, it may be observed that there is definitely an error apparent on the face of the record as the Board of Revenue considered the suit of the plaintiff to be of declaration and division of holding and the Board did not consider the suit only for division of holding. A perusal of the plaint would indicate that it was a suit for division of holding only; it was not a suit for declaration. The decree passed by the Revenue Appellate Authority also hears testimony to this fact that the suit of the plaintiff was only f)r division of holding. In this view of the matter, the first objection raised by Shri Garg no more survives. 6. The decree passed by the Revenue Appellate Authority also hears testimony to this fact that the suit of the plaintiff was only f)r division of holding. In this view of the matter, the first objection raised by Shri Garg no more survives. 6. Regarding point No 2, Shri Garg placed reliance on Bhagwan Swaroop & Ors. v. Mool Chand & Ors (1983) 2 SCC 132 . The facts of the judgment in Bhagwan Swaroop's case (Supra) and the facts of the present case, so far as deciding the controversy between the parties is concerned regarding the applicability of order 22. Civil Procedure Code are not different. In Bhagwan Swaroop's case (Supra), the trial Court passed a decree on 11th January, 1972. An appeal was filed in the High Court. During the pendency of the appeal. appellant Maharaj Swaroop died. It appears that on his death his heir and legal representatives were substituted. In the appeal, Ganesh Narain Mathur, original defendant No. 1, was impleaded as respondent No. 1. During the pendency of the appeal respondent No. 1 died on 10th February, 1977. On 13th August, 1981, Moo] Chand. respondent No. 2 moved an application that the original defendant No. 1 Ganesh Narain Mathur having expired on 10th February 1977 and his heir and legal representatives having net been substituted, the appeal abated as a whole At the stage, the appellants moved an application on 4th September, 1981 under Order 22, Rule 4 Civil Procedure Code for substitution and before this application could be disposed of, one Prabhu Narain claiming the son of deceased respondent No. 1 Ganesh Narain Mathur moved an application under Order 1, Rule 10. Civil Procedure Code praying that he and others mentioned in the application be impleaded as heirs and legal representatives of deceased respondent No. 1 Ganesh Narain Mathur. To this a counter was filed by the 2nd respondent Mool Chand contending that the said application was not maintainable. Civil Procedure Code praying that he and others mentioned in the application be impleaded as heirs and legal representatives of deceased respondent No. 1 Ganesh Narain Mathur. To this a counter was filed by the 2nd respondent Mool Chand contending that the said application was not maintainable. A Division Bench of this Court in D.B. Civil Regular First Appeal No. 67 of 1972, decided on 27th January, 1982, held that the preliminary decree was one whole and indivisible and as shares have been defined by the preliminary decree, if the appeal is proceeded with in the absence of the heir and legal representatives of the deceased respondent No. 1 Ganesh Narain Mathur, it would result in inconsistent decrees and therefore, the appeal abates as a whole. The High Court also rejected the application of the legal representatives of deceased respondent No. 1 under Order 1 Rule 10. Civil Procedure Code and observed that the provisions of Order 1 Rule 10, Civil Procedure Code cannot over-ride the specific provisions of Order 22, Civil Procedure Code. The Supreme Court in Bhagwan Swaroop's case (Supra) did not agree with the proposition of law laid down by the Division Bench of this Court, as stated above. The Hon'ble Supreme Court allowed the appeal of Bhagwan Swaroop while setting aside the judgment and the legal representatives of the deceased were allowed to be brought on record, after setting aside the abatement and condoning the delay in making the application. Since the learned Board of Revenue did not consider this aspect of the matter, that provisions of Order 1 Rule 10, Civil Procedure Code are also applicable and the relief to the petitioner could be given under Order 1 Rule 10. Civil Procedure Code as relief was given in Bhagwan Swaroop's case by the Supreme Court. Thus, there is an error apparent on the face of the record. 7. In the premises aforesaid, the writ petition is allowed. The case is remanded to the Board of Revenue for considering the review application in the light of the observations made by the Supreme Court in Bhagwan Swaroop's case. The order passed by the board of Revenue, dated 5th June. 1984, is set aside. The learned Board of Revenue would re-hear and re-decide the review petition on merit. 8. There shall be no order as to costs.Petition allowed. *******