Mamraj v. Board of Revenue — 1996 DIGILAW 676 (RAJ)

Honble MISRA, J. – The judgment and order passed by the Board of Revenue on January 5, 1985 as also the order of the Revenue Appellate Authority dated August 28, 1978 as contained in Annexures 9 and 7 respectively are under challenge in this writ petition which had been passed by the aforesaid authorities holding therein that the appeal which had been filed against dismissal of the suit for correc- tion of the entries in the revenue record has abated as a whole against the surviving respondent also, on account of death of one of the respondent, out of the two respondents, who died during the pendency of the appeal before the Revenue Appellate Authority. A further direction has been sought to the Revenue Appellate Authority for hearing the appeal on merits which arose out of the suit No. 1/170 for correction in the revenue records. To State the relevant facts precisely, the same is allocated in the following manner :– (2). The plaintiff who is the petitioner herein had filed two suits, one on 10.1.69 and another on 5.5.71 for perpetual injunction and for correction of the entries in the revenue records against the defendant-respondents, who are two brothers Leela and Ramlal, defendants No. 1 and 2 respectively in the two suits. Both the suits were subsequently consolidated by order of the SDO Alwar as the subject matter of both the suits were regarding the agricultural land bearing various khasra numbers which comprised of 13 bighas and 3 biswas situated in village Bhakra Tehsil Alwar. It is not essential to enter into the details facts regarding the right of the parties regarding the suit land which had been filed by the plaintiff-petitioner Mamraj as against the defendant-respondents. (3). Since the only question which requires consideration is whether the appeal preferred by the plaintiff-petitioner will abate as a whole on account of death of one of the respondents or it will survive against the remaining respondent who was already on record. Hence, it is sufficient to state that the suit filed on 5.5.71 was for declaration that the plaintiff/petitioner was the Khatedar of the aforesaid agricultural land and entries in the revenue records required to be corrected, striking off the name of defendants Leela and Ramlal, regarding their claim of Kha- tedari rights in the aforesaid land. Hence, it is sufficient to state that the suit filed on 5.5.71 was for declaration that the plaintiff/petitioner was the Khatedar of the aforesaid agricultural land and entries in the revenue records required to be corrected, striking off the name of defendants Leela and Ramlal, regarding their claim of Kha- tedari rights in the aforesaid land. It was however also prayed therein that the defendants be restrained from interfering with the peaceful possession of the agriculture land mentioned above. The second suit which had been filed on 10.1.69 was for perpetual injunction and declaration against the defendant/respondents claiming khatedari rights over the land. (4). The two suits were consolidated by order of the SDO, Alwar being the trial Court who after trial was pleased to pass a common judgment in both the suits which were consolidated and decree was passed in favour of the plaintiff-petitioner which had been filed for permanent injunction and the respondents were res- trained from interfering with the possession of the plaintiff-petitioner. The suit claiming relief as regards correction of entries in the revenue records was however dismissed against which an appeal was preferred before the Revenue Appellate Authority. During pendency of this appeal on the respondents namely Leela died as a result of which the whole appeal was held to have abated and the order stood confirmed by the Member, Board of Revenue in second appeal. This judgment and decree of the SDO is dated 1.12.1976. (5). It is pertinent to mention herein that the defendant/respondents had not preferred any appeal against the order granting permanent injunction in favour of the plaintiff-petitioner and consequently acquiesced with the judgment and decree in so far as the permanent injunction is concerned. The decree, therefore, regar- ding grant of injunction had become final before the trial Court itself. (6). The plaintiff/petitioner, however, feeling aggrieved regarding refusal of the prayer for correction of the entries in the revenue records filed an appeal before the Revenue Appellate Authority, Alwar and during pendency of appeal before the Revenue Appellate Authority, one of the defendant-respondents namely Leela died some time in February 1977 during which time the appeal was pending before the Revenue Appellate Authority as already stated hereinabove. The plaintiff-petitioner therefore moved an application before the Revenue Appellate Authority on 26.5.1977 as since he has no right, title or interest in the agricultural land in dispute and his legal representatives have also no interest in the disputed land, as such, the deceased Leela was not a necessary party in appeal and hence his name should be allowed to be struck-off from the array of appeal filed by the plaintiff-petitioner before the Revenue Appellate Authority. Defendant No. 2 Ramlal, who is respondent No. 4 herein, however, filed a reply to the said application and took the plea that the legal representatives of deceased Leela are necessary party and since his heirs have not been brought on record the appeal should not be allowed to continue and the application deserves to be dismissed. (7). The Revenue Appellate Authority after hearing both the parties concluded and held that since the application has been moved on behalf of the plaintiff-petitioner to strike-off his name, the appeal against Ramlal alone could not continue, and the whole appeal in that event would abate. (8). The plaintiff-petitioner, therefore, had been compelled to move further and hence a second appeal was preferred before the Board of Revenue contending inter-alia that Leela was not a necessary party in the appeal because no relief had been claimed against him. It was also clarified that since the matter of injunction got concluded at the stage of the trial Court itself there could be no question of seeking any decree of confirmation of the order of injunction passed in favour of the plaintiff-petitioner. The question therefore, which was required to be decided by the Revenue Appellate Authority was only regarding the correction of the entries in the revenue record which was duly represented by the defendant-respondent. The learned Member of the Board of Revenue on consideration of the entire matter ultimately was of the opinion that the Revenue Appellate Authority was justified in passing an order of abatement in the appeal as it could not proceed in absence of one of the parties as the continuation of the appeal ultimately would result in passing of two conflicting decrees and hence the whole appeal would abate before the Revenue Appellate Authority. The judgment and order of the Board of Revenue thus came to be challenged before this Court in this writ petition. (9). The judgment and order of the Board of Revenue thus came to be challenged before this Court in this writ petition. (9). Learned counsel for the petitioner Shri R.P. Singh has assailed the order of the Board of Revenue as also the Revenue Appellate Authority and submitted that the impugned orders of the Courts below are fit to be struck down as illegal and invalid since the same on the face of it is contrary to law. I find force in this submission as it is well established by law under Order XXII of the Code of Civil Procedure that the suit or appeal shall not abate on death of one of the defendants-respondents out of several defendant-respondents if the right to sue survives against the other defendants-respondents provided the decree does not result into contradiction in regard to the same subject matter. It is quite apparent under the facts of this case that the appeal before the Revenue Appellate Authority was confined to the subject-matter of correction of the entries in the revenue record as to whether the said entries required any rectification. The appeal did not arise out of the suit for injunction as the same was already granted in favour of the petitioner. The appeal merely challenged the entries in the record impleading the two brothers Leela (the deceased) and Ram Lal, who was already on record representing himself. The interest of the deceased-respondent, therefore, in the appeal was identical to that of his brother Ramlal. The right to sue, thus survived against Ram Lal, who was very much on record and even if the name of deceased was struck off as prayed by the plaintiff-petitioner himself, the appeal could be dismissed due to non-representation only against the deceased respondent who was un-represented because in the event of non-representation of any of the parties to the suit on account of death of one of the party, the appeal could be held to have abated only against the deceased-respondent and not against the surviving respondent, who was already on record since the right to sue very much survived against him as it was the plaintiff-petitioner who chose not to proceed besides the appeal in regard to the deceased-respondent. So at the most his right could be affected only against the deceased Leela and not against all the defendant-respondents as has been held in cases too numerous to mention since a long time. The learned Member of the Board of Revenue as also the Revenue Appellate Authority has not appreciated the question involved in the right perspective and they are in error in my opinion while holding that on the death of one party who goes un-represented it would result in passing of the conflicting decrees without specifying in this case, in what manner the same would give rise of conflicting decree, as the appeal did not arise out of the decree passed in the suit for injunction and as already stated, that it was for correction in the revenue record of rights. (10). In addition, it may be stated that the decree for permanent injunction has been passed in favour of the plaintiff-petitioner and against the surviving defendant-respondent Ramlal against which he did not prefer any appeal. Hence, it is prima facie difficult to infer how a decree for correction in the revenue record would result in contradiction as such decree cannot have the value of a decree determining the title of the parties so as to hold that it would result into passing of a conflicting decree. (11). The orders of the Revenue Appellate Authority dated 28th August, 1978 and the order of the Board of Revenue dated January 5, 1985 in this regard are wholly mis-placed and hence fit to be set aside. The two orders are consequently struck down as invalid and the matter is remitted to the Revenue Appellate Autho- rity, Alwar for deciding the appeal No. 48/77 which arose out of the Revenue Suit No. 1/170 (Mamraj vs. Leela) pertaining to correction of the entries in the revenue records. It is made clear that since the defendant-respondent Ramlal had not filed any appeal against the grant of injunction in favour of the plaintiff-petitioner, the defendant-respondent shall not be allowed to address the Revenue Appellate Authority on the question of grant of permanent injunction. It goes without saying that the name of deceased Leela in the memo of appeal before the Revenue Appellate Authority shall be deleted as had been prayed by the plaintiff-respondent before the Revenue Appellate Authority. It goes without saying that the name of deceased Leela in the memo of appeal before the Revenue Appellate Authority shall be deleted as had been prayed by the plaintiff-respondent before the Revenue Appellate Authority. The parties to the appeal are directed to appear before the Revenue Appellate Authority on 30th September, 1996, who shall proceed in accordance with law and decide the appeal for correction of the entries in the revenue record on merits. (12). The writ petition is accordingly allowed with no order as to costs.