JUDGMENT 1. - Shri Binja filed an application under section 180(1)(b) of the Rajasthan Tenancy Act, 1955 thereinafter referred to as (1955 Act') for ejectment of Sheodan from the land falling in khasra numbers 1097 and 1082 situated in village Malpur, Tehsil Khetri District Jhunjhunu. It was stated in the said application that Binja who was khitedar, had given sub lease of khasra No. 1097 in Samwat 2002 on payment of rent at the rate of Rs. 11/- on year to year basis. Land in Khasra No. 1082 was sub-let to Sheodan in Samwat 2010 and he agreed to pay total rent of Rs. 30/- on year to year basis for lands falling in both khasras referred to herein above. It was stated that Sheodan had failed to pay rent for Samwats 2014 and 2015 and therefore he was liable to be ejected. 2. This application filed by Binja was resisted by Sheodan and the same was treated as a suit under section 182(3) of 1955 Act. 3. Sheodan filed a written statement in the court of Sub Divisional Officer Khetri. Therein he admitted that Binja had given the lands falling in khasra numbers 1097 and 1082 to him on lease. He however asserted that it was a perpetual lease and not a sub-lease on year to year basis as alleged in the application. He asserted that he had acquired occupancy rights in the lands falling in the two khasra numbers and therefore he could not be ejected. He claimed that he had acquired khatedari rights under section 19 of 1955 Act. 4. The Sub Divisional Officer, Khetri framed 9 issues. The Sub-Divisional Officer, Khetri concluded that the applicant had failed to establish that the sub-lease was on year to year basis and he therefore dismissed the suit on 7.10.1969. 5. During the pendency of suit Binja had died and therefore his legal representatives Kurda S/o Shri Binja, Parli D/o Shri Binja and Subhas S/o Shri Khurda were brought on record. Subsequently Kurda also died. His legal representatives Sultan, Subhash, Mahendra, Ramavtar all sons of Kurda Bhagdi W/o Kurda, Mst. Nandkaur W/o Ram Swaroop and Savitri W/o Umrao Singh were brought on record. 6. Against the judgment and decree of the Sub-Divisional Officer, Khetri appeal was filed before the Revenue Appellate Authority II Jaipur. 7. Subsequently Kurda also died. His legal representatives Sultan, Subhash, Mahendra, Ramavtar all sons of Kurda Bhagdi W/o Kurda, Mst. Nandkaur W/o Ram Swaroop and Savitri W/o Umrao Singh were brought on record. 6. Against the judgment and decree of the Sub-Divisional Officer, Khetri appeal was filed before the Revenue Appellate Authority II Jaipur. 7. The appeal was allowed by the Revenue Appellate Authority II, Jaipur vide its judgment dated 6.3.1973. The judgment and decree passed by the Sub-Divisional Officer, Khetri was set aside and the suit filed against Sheodan was decreed for his ejectment and for restoration of possession to appellants. 8. Sheodan preferred second appeal before the Board of Revenue under section 2 [sic 224 (2)] of 1955 Act. The Board of Revenue held that although Sheodan did not acquire khatedari rights under section 19 of 1955 Act but he became a khatedar under Section 15 of the Act of 1955. The Board of Revenue observed that name of Sheodan had been shown as tenant in Ex P.2 and Ex.D.3. The name of Binja (plaintiff) was shown as tenant in the record against other khasra numbers but not in respect of disputed khasras. Thus Sheodan was not merely a sub-tenant at the commencement of the Act of 1955 and the bar contained in section 3(4) read with section 45 would not be attracted. 9. The petitioners filed a review petition before the Board of Revenue alleging that appellant Sheodan had died during the pendency of appeal but his legal representatives were not brought on record and therefore, the appeal could not nave been decided on merits and ought to have been dismissed as having abated in toto. Likewise Mst. Parli had also died during the pendency of appeal but no application bringing her legal representatives on record had been filed. It was further alleged that the Board could not have made out a new case of khatedari rights under section 15 of the Act in favour of Sheodan. 10. The review petition has been dismissed by the Board of Revenue vide its order dated 24-4-1978. 11. The Board has held that after the death of Sheodan on 19-1-1976 an application dated 22-7-1976 was filed by one Sardara Ram son of Sheodaa praying that three legal representatives and their counsel had appeared before the Board and argued the case without any objection. 11. The Board has held that after the death of Sheodan on 19-1-1976 an application dated 22-7-1976 was filed by one Sardara Ram son of Sheodaa praying that three legal representatives and their counsel had appeared before the Board and argued the case without any objection. Thus legal representatives of Sheodan were before the Board all the time and absence of a formal order for bringing them on record does not render the judgment illegal. Regarding the plea that Mst. Parli's legal representatives had not been arrayed as parties, it was held by the Board that no such objection had been raised till the decision of appeal and in the review, the Board cannot travel outside the record which was before it in second appeal. 12. The petitioners have filed this writ petition challenging the two orders passed by the Board of Revenue on 21-6-1977 and 24-4-1978. In the writ petition the petitioners have assailed the orders of the Board on the grounds which were raised in the review petition. In reply to the writ petition, filed by respondents numbers 4 to 6 (six), it has been asserted that the orders passed by the Board are legal and just. 13. Shri N.K. Maloo learned counsel for the petitioner has argued that after the death of Sheodan on 12-1-1976, application for bringing his legal representatives on record ought to have been filed within 90 days Since this was not done, the appeal which was pending before the Board abated in toto. The only course open to the legal representatives of deceased Sheodan was to apply for setting aside the abatment. No such application had been filed before the Board. In this view of the matter, the Board had no jurisdiction to decide the appeal on the merits. According to Shri Maloo the Board had no alternative but to dismiss the appeal as having abated and judgment and decree passed by the Board is nullity. Mere filing of application dated 22-7-1976 by Shri Sardara Ram S/o Sheodan could not cloth the Board with the jurisdiction to decide the appeal on merits without examining the question of abatment. According to Shri Maloo the Board had no alternative but to dismiss the appeal as having abated and judgment and decree passed by the Board is nullity. Mere filing of application dated 22-7-1976 by Shri Sardara Ram S/o Sheodan could not cloth the Board with the jurisdiction to decide the appeal on merits without examining the question of abatment. Shri Maloo has invited our attention to the provisions of sections 180, 182, and 208 of the Act of 1955 and submitted that the application filed under section 180 (I) (b) was treated as suit and therefore provisions of the Code of Civil Procedure were applicable. 14. Shri Raj Kumar learned counsel for the respondents No. 4 to 6 has argued that application filed under section 180 cannot be treated as a suit and therefore the provisions of the Code of Civil Procedure are not applicable to the proceedings initiated by an application for ejection. Thus provisions of Order 22 Rule 4 could not be invoked by the petitioners. He further submitted that when application for impleading the legal heirs of deceased Sheodan had been filed on 22-7-1976, the petitioners ought to have opposed the same. Since they did not file any objection against, it would be presumed that they had no objection to the application of Sardara Ram S/o Sheodan. Thus the Board was justified in passing the impugned judgment and decree. 15. The provisions of section 180, 181, 182 and 208 of the Rajasthan Tenancy Act, 1955 are in these terms 180. Since they did not file any objection against, it would be presumed that they had no objection to the application of Sardara Ram S/o Sheodan. Thus the Board was justified in passing the impugned judgment and decree. 15. The provisions of section 180, 181, 182 and 208 of the Rajasthan Tenancy Act, 1955 are in these terms 180. Additional provisions for ejectment of Khudkhasht or Ghair-Khatedar tenants or subtenants (1) A tenant of Khudkasht or a Ghair-Khatedar tenant or sub-tenant shall also be liable, on application, to ejectment on any of the following grounds, namely : (a) that the land held by such tenant or sub-tenant is in excess of the minimum area prescribed by the State Government for the district or part of the district in which such land is situated and ejectment from the excess area is sought by the landholder for the purpose of his personal cultivation- Provided that different limits may he prescribed for different districts or parts of a district, so however, as to ensure a net annual income of twelve hundred rupees for such tenant or sub-tenant exclusive of the cost of his labour and the labour of his family; (b) that he is a tenant or sub-tenant holding from year to year : Provided that no tenant or sub tenant holding land in the Abu area from year to year shall be liable to ejectment under this clause; (c) that the lease or sub-lease granted after the commencement of this Act under section 45 has expired or will-expire before the end of the current agricultural year and the land-holder requires the land for his personal cultivation; (d) that the land had been under the personal cultivation of the landholder for a continuous period of five years immediately preceding the agricultural year 1948-49 and was, during or after that year, given on lease or sub-lease for a fixed term and such lease or sub-lease would have terminated and the tenant or sub-tenant would have been liable to return possession of land to his landholder but for the provisions of Raj. (Protection of Tenants) Ordinance, 1949 (Rajasthan Ordinance IX of 1949) unless in the mean while Khatedari rights have accrued to such tenant or sub-tenant under any law during the term of such lease or sub-lease : Provided that a landholder shall not be entitled to an order for ejectment under clause (d) unless he requires the land from which ejectment is sought for his personal cultivation and unless such land is in excess of the minimum area prescribed for the purposes in clause (a):- Provided further that a landholder holding under his personal cultivation an area of land equal to the ceiling area applicable to him shall not also be entitled to an order for the ejectment of a tenant under clause (d) and a landholder holding a less area shall be entitled to such an order only from such areas which, together with the area already held by him, shall not exceed the ceiling area applicable to him. (1-A) No tenant holding land in the Abu area since before the commencement of the Rajasthan Revenue Laws (Extension) Act, 1957 shall be liable to ejectment on any of the grounds mentioned in sub-section (1) by reason of efflux of time or if, before such commencement he has been deemed to be the purchaser of his holding within the meaning of section 32 of the Bombay Tenancy and Agricultural Lands Act, 1948. (2) The State Government shall prescribe the procedure to be adopted in cases where there are more tenants or sub-tenants than one, or where the area held by the tenant or sub-tenant is in excess of the area from which ejection can be sought under clause (d) of sub-section (1). 181. Application and notice-(1) An application for ejectment under section 180 shall be made between the first day of July and 30th day of September and not otherwise. (2) Every application under sub-section (1) shall state the ground on which ejectment is applied for. (3) On an application being made in accordance with the foregoing subsections, a notice shall, on payment of the prescribed fee, be served on tenant or sub-tenant in the prescribed manner, informing him that if he desires to dispute the ejectment he mast contest the notice within thirty days of its being served oo him. 182. (3) On an application being made in accordance with the foregoing subsections, a notice shall, on payment of the prescribed fee, be served on tenant or sub-tenant in the prescribed manner, informing him that if he desires to dispute the ejectment he mast contest the notice within thirty days of its being served oo him. 182. Procedure subsequent to the issue of notice-(1) If a tenant or sub-tenant on whom a notice is served under section 181 appears and admits his liability to ejectment the court shall pass an order for his ejectment but he shall not be liable for any costs. (2) If the tenant or sub-tenant does not appear within the period prescribed by such notice the court shall pass an order for his ejectment : Provided that such tenant or sub tenant may within thirty days from the date of such order, apply for setting it aside and if he satisfies the court that either the notice was not served on him or he had sufficient cause for non-appearance within the period prescribed by the notice, the court shall set aside the order and shall proceed to hear the application in the manner hereinafter prescribed. (3) If within the period prescribed the tenant or sub-tenant appears and contest his liability to ejectment the court shall, on payment of the proper court fee, treat the application to be a plaint and proceed with the case as a suit:- Provided that in the event of the application having been made by a Tehsildar in respect of land held directly from the State Government, no Court fee shall be payable. (4) To a decree or order passed under this section, the provisions of subsection (1) of section 178 shall apply. (4) To a decree or order passed under this section, the provisions of subsection (1) of section 178 shall apply. (5) Where an estate-holder who has been a member of the Armed Forces of the Union seeks the ejectment of his tenant of Khudkasht or Ghair-Khatedar tenant, or where a Khatedar tenant having been such a member seeks the ejectment of his sub-tenant, under clause (a) or clause (d) of sub-section (1) of section 180, then, notwithstanding anything contained in the provisos to those clauses or in section 19, the court may direct by such decree or order that the tenant of Khudkasht or Ghair Khatedar tenant or, as the case may be, the sub-tenant shall be ejected from the whole of his holding or, as the case may be, from a portion thereof, if it does not exceed the ceiling area applicable to such estate-holder or such Khatedar tenant. 208. Application of Civil Procedure Code-The provisions of the Code of Civil Procedure, 1908 (Central Act V of 1908), except:- (a) Provisions inconsistent with anything in this Act, so far as the inconsistency extends, (b) Provisions applicable only to special suits or proceedings outside the scope of this Act, and (c) provisions contained in List I of the Fourth schedule, shall apply to all suits and proceedings under this Act subject to the modifications contained in List II of the Fourth Schedule." 16. A combined reading of these provisions show that section 180 (I) is a special provision for ejectment of a tenant of Khudkast, Ghair-Khatedar tenant or a sub-tenant on the grounds specified in sub-clauses (a) & (b). Notice of such application is to be issued as per section 181. Section 182 (1) says that an order of ejectment can be passed if a sub-tenant appears and admits liability to ejectment. Under Section 182 (2) order of ejectment can be passed if the tenant or sub tenant fails to appear despite service of notice under Section 181. However, in case the tenant or sub-tenant appears in pursuance of such notice and contests his liability to ejectment, the court shall treat the application as a plaint and proceed to decide it as a suit on payment of court fee. This is specifically provided in section 182(3). However, in case the tenant or sub-tenant appears in pursuance of such notice and contests his liability to ejectment, the court shall treat the application as a plaint and proceed to decide it as a suit on payment of court fee. This is specifically provided in section 182(3). Provisions of the Code of Civil Procedure have been made applicable to all suits and proceedings under the Act of 1955 subject to certain exceptions. Therefore once the application filed under section 180 (1) (b) is treated as a suit provisions of the Code of Civil Procedure including Order 22, Rule 4 would be attracted and consequences of not impleading legal representations of a deceased party shall follow. 17. In the instant case we find that the three revenue courts have proceeded with the case by treating it to be suit because Sheodan had contested the application filed by Binja under Section 180(1)(b). In the writ petition also the petitioners have clearly stated the application filed by Binja was treated as a suit by the Sub Divisional Officer Khetri. This statement contained in para 1 of the writ petition has been admitted by the respondents No. 4 to 6 in their reply by making a reference to Section 182(3) of the Act. In this view of the matter there is no force in the submission of Shri Raj Kumar that the application filed under Section 180 (1) (b) could not be treated as a suit and therefore provisions of Order 22, Rule 4 are inapplicable. 18. Once it is held that provisions of Order 22, Rule 4 Code of Civil Procedure are applicable we shall examine as to what is effect of the death of Sheodan and failure of the respondents to bring his legal representatives on record. Fact situation is not in controversy. Sheodan had died on 19.1.1976 during the pendency of second appeal before the Board of Revenue. No application for bringing his legal representatives on record was filed within 90 days. However on 22.7.1976 Sardara Ram S/o Shri Sheodan moved an application for bringing legal representatives of Sheodan on record. This application was also not decided by the Board of Revenue and it proceeded to decide the second appeal vide judgment dated 21.6.1977. No application for setting aside the abatement was filed before the Board of Revenue at any stage. 19. However on 22.7.1976 Sardara Ram S/o Shri Sheodan moved an application for bringing legal representatives of Sheodan on record. This application was also not decided by the Board of Revenue and it proceeded to decide the second appeal vide judgment dated 21.6.1977. No application for setting aside the abatement was filed before the Board of Revenue at any stage. 19. In Padmaram and others v. Surja and others ( AIR 1961 Raj. 72 ) , a single Bench of this court considered the question of abatement of appeal at length. The court observed as under : "Now what is the principle behind the rules relating to abatement of suits and appeals and the setting aside thereof? I think it can be premised without any fear of contradiction that, broadly speaking, the principle is two-fold. The first is that the Court has no jurisdiction to pass a decree for or against a dead man unless the law has by a special provision provided otherwise. (See Rule 6 of O. 22, for instance). The second is that the legal representatives of a party who is dead, and whose presence may be essential for a proper decree to be passed must be substituted for him so that the possibility of two contradictory decrees in the same proceeding be avoided. It seems to me that the principle provisions enacted in O. 22 with which we are concerned can be basically traced to the aforementioned two principles. Let me illustrate this by a simple example. A sues B. B dies during the pendency of the suit. The right of suit does not according to the law applicable end with the death of B, but services against the legal representatives of B. No decree can be passed against B he being a dead man B's legal representatives must, therefore, be brought on record within the time allowed by law. If that is not done, the suit must abate and abate entirely for there is no person against whom it can be proceeded with. Let us now take another example A sues both B and C. The suit is dismissed. A files an appeal against both B and C.B dies during the pendency of the appeal. The right of suit does not survive against C alone. B's representatives must, therefore, be brought on record within the period of limitation. But suppose they are not substituted. A files an appeal against both B and C.B dies during the pendency of the appeal. The right of suit does not survive against C alone. B's representatives must, therefore, be brought on record within the period of limitation. But suppose they are not substituted. Then no decree can be passed against a dead man and so the appeal abates against B The effect of the abatement is that no fresh appeal can thereafter be brought against the legal representatives of B against the decree of the trial court. On the abatement of the appeal against B, however, a further question may arise whether the appeal abates against C also. The answer to this question depends upon the facts and circumstances of a given case. Thus, where in the event of a decree being passed against C by the appellate court, two contradictory decrees would come into existence, the one being the decree of the trial court enuring in favour of the legal representatives of the deceased respondent B, the appeal having failed swing to abatement, and the other being a decree against C to be passed by the appellate court, both relating to the same subject-matter the entire appeal must abate. The usually accepted test is that if two mutually contradictory decrees is the resultant effect of the situation that has developed, then the whole appeal must abate on the principle that law does not favour any such incongruous result. The two decrees militating against each other could only result in a futility or to put it differently they would, as it were, virtually cancel themselves. Such a situation may result, for example, where the rights of B and C are joint and invicisible and to touch the rights of C would be inevitably to touch the rights of the other. But where these rights are distinct and separate or even separable the abatement would be partial only, that is, qua B only and not against C. This to my mind is the general effect of the Rules 1, 2, 3, 4, 9 and 11 of O. 22 of the Code of Civil Procedure. The combined force of Rules 3 and 4 and 9 of O. 22, in my opinion, clearly is that they arc mandatory. The combined force of Rules 3 and 4 and 9 of O. 22, in my opinion, clearly is that they arc mandatory. Not only the word 'shall' has been used in all these rules, but the consequence of the failure of compliance with the requirements thereof has been mentioned, and, that being so, there cannot be two opinions on the question that the rules are mandatory. It may also be pointed out in this connection that although the rules discussed above are primarily worded so as to apply to suits, they have been made applicable to appeals as well by virtue of Rule 11, which provides that, so far as may be, the word "plaintiff" shall be held to include an appellant, the word "defendant" a respondent and the word "suit" an appeal. Therefore, a decree passed without impleading the legal representatives of a sole appellant who may have died during the pendency of the appeal is a nullity and so also where there are more than one appellant or respondent in an appeal and one of them has died during the pendency of the appeal, the result of not impleading in time the legal representative of the deceased party, generally speaking, will be to cause an abatement of the appeal so far as he is concerned. 20. In Madan Naik (dead by LRs.) and others v. Mst. Hansubala Devi and others ( AIR 1983 SC 676 ) , the Supreme Court has observed as under:- "It may be mentioned that no specific order for abatement of a proceeding under one or the other provision of O. 22 is envisaged, the abatement takes place on its own force by passage of time. In fact, a specific order is necessary under Order 22, Rule 9, C.P.C. for setting aside the abatement." 21. In the light of these principles, it must be held that on account of failure to bringing the legal representatives of Sheodan on record within 90 days of his death resulted in automatic abatement of the second appeal which was pending with the Board of Revenue. Since no prayer was made for setting aside the abatement, the judgment and decree passed by the Board of Revenue must be held to be nullity and the same deserves to be set aside and quashed. Since no prayer was made for setting aside the abatement, the judgment and decree passed by the Board of Revenue must be held to be nullity and the same deserves to be set aside and quashed. As a result, the order passed by the Board of Revenue on review petition of the petitioners is also liable to be set aside. 22. No cause was shown before the Board of Revenue by Sardara Ram who had filed an application dated 22-7-76 as to why the application for bringing legal representatives of Sheodan had not been filed within a period of 90 days. Merely because the petitioners had not filed objection against the application dated 22-7-1976, which cannot be said that the abatement of the appeal would stand set aside. 23. In view of this finding it is not necessary to decide the other question raised in this petition. 24. The writ petition is, therefore, allowed, and the judgment and decree passed by the Board of Revenue dated 21-7-1976 is set aside and the judgment and decree passed by the Revenue Appellate Authority on 26-3-1973 is restored. The parties are to bear their own costs.Petition allowed. *******