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2006 DIGILAW 2703 (RAJ)

Laxman Singh v. Board of Revenue

2006-09-11

DALIP SINGH

body2006
Judgment Dalip Singh, J.-In this writ petition the petitioner has challenged the Judgment s of the learned Revenue Appellate Authority and the learned Board of Revenue holding that the petitioner has no right to file the appeal. 2. The facts, in brief , are that the petitioner purchased the land in dispute from the defendant Natthi during the pendency of the suit filed by Jyoti Ram, Respondent No. 4 before the learned trial Court. As per the Judgment of the deceased trial Court, the defendant Natthi was served on 03.07.1979 but thereafter failed to appear. 3. The sale in favour of the petitioner was executed by Natthi on 29.08.1991, during the pendency of the suit which came to be decided by the learned trial Court on 21.09.1994. The suit was decreed by the trial Court vide Annexure-1 and it was held that the plaintiff Jyoti Ram along with the Defendant No. 4 Ramdai were held to be joint khatedars having equal share in the land in dispute and the other defendants were restrained by means of injunction not to interfere in their possession and cultivation. 4. It may also be mentioned here that the fact regarding the sale of the land also appears to have come to the notice of the plaintiff Jyoti Ram who moved an application under Section 212 of the Rajasthan Tenancy Act, 1955 for the grant of temporary injunction on 07.08.1993 making the petitioner Laxman Singh as party to the said application but, learned Counsel for the petitioner submits, that no orders were passed on the said application which has been filed as Annexure-2 on the record. 5. Being aggrieved by the Judgment and decree of the learned trial Court dated 21.09.1994, the petitioner Laxman Singh who was the purchaser from Natthi, Defendant No. 1 having purchased the land in dispute on 29.08.1991 preferred an appeal before the learned Revenue Appellate Authority. The learned Revenue Appellate Authority by the Judgment (Annexure-11) dated 15.04.1995 dismissed the appeal holding that the petitioner Laxman Singh who was the purchaser during the pendency of the suit had no locus standi to challenge the Judgment and decree as in the opinion of the learned Revenue Appellate Authority the principles of lis pendesne applied in the case. 6. The learned Revenue Appellate Authority by the Judgment (Annexure-11) dated 15.04.1995 dismissed the appeal holding that the petitioner Laxman Singh who was the purchaser during the pendency of the suit had no locus standi to challenge the Judgment and decree as in the opinion of the learned Revenue Appellate Authority the principles of lis pendesne applied in the case. 6. Being aggrieved by the dismissal of the appeal, the petitioner Laxman Singh preferred a second appeal before the learned Board of Revenue and the learned Board of Revenue also upheld the Judgment of the learned Revenue Appellate Authority and dismissed the second appeal. Hence, this writ petition. 7. Learned Counsel for the petitioner was submitted that in the instant case Section 223 of the Rajasthan Tenancy Act permits a person who may be aggrieved by the Judgment and decree to prefer an appeal. It is submitted that the provisions of Civil Procedure Code have also been made applicable to the suits under provisions of Rajasthan Tenancy Act by Virtue of Section 208 and that any person aggrieved may prefer an appeal against the Judgment and decree of the lower Court. It is submitted that by virtue of the provisions contained in Order 22 Rule 10 Civil Procedure Code, the fact regarding the sale made in favour of the petitioner in the year 1991 having come to the notice of the plaintiff who had even filed an application for grant of temporary injunction (Annexure-2) the petitioner was a person aggrieved having an interest in the property having purchased the same during the pendency of the suit and, therefore, he has locus standi to file an appeal. Learned Counsel for the petitioner has in this behalf relied upon a Judgment of the Hon’ble Supreme Court in the case of State of Punjab & Ors. vs. Amar Singh & Anr., AIR 1974 SC 994 . 8. Learned Counsel appearing on behalf of the respondents, on the other hand, has submitted that the petitioner cannot claim any better right than the Defendant No. 1 who was absented himself and had remained ex-part during the proceedings before the learned trial Court and after 03.07.1979 the Defendant No. 1 did not choose to take part in the proceedings. 8. Learned Counsel appearing on behalf of the respondents, on the other hand, has submitted that the petitioner cannot claim any better right than the Defendant No. 1 who was absented himself and had remained ex-part during the proceedings before the learned trial Court and after 03.07.1979 the Defendant No. 1 did not choose to take part in the proceedings. He, therefore, submits that since the Defendant No. 1 remained ex-parte, the petitioner who is a purchaser from the Defendant No. 1 cannot claim any better right than the Defendant No. 1. 9. I have heard learned Counsel for the parties and perused the impugned orders Annexure-11 passed by the learned Revenue Appellate Authority and Annexure-12 passed by the learned Board of Revenue. 10. It is not in dispute that during the pendency of the suit in the year 1991 before the decree was passed by the learned trial Court on 21.09.1994, the land in dispute had been purchased by the petitioner and the plaintiff had himself moved an application for the grant of temporary injunction in this behalf before the trial Court. As such, the fact regarding the sale and transfer by the Defendant No. 1 in favour of the petitioner was in the knowledge of the respondent-plaintiff himself . 11. In view of the above, the provisions contained in Order 22 Order 10 Civil Procedure Code come into the operation and, therefore, it was the duty of the plaintiff himself to have impleaded the subsequent purchaser on whom by virtue of the sale the interest in the suit property had devolved during the pendency of the suit. Thus, so far as the right of the subsequent purchaser to continue the proceedings or to be substituted in place of the party whose right, title and interest had devolved upon such subsequent purchaser and to carrying on the proceedings are concerned, the same are recognized in the eye of law. By virtue of the provisions of lis pendense all that can be said is that he cannot claim any better interest than what the person conferring the title has in this behalf and he would be governed and bound by the Judgment and decree that may be passed in the suit. 12. By virtue of the provisions of lis pendense all that can be said is that he cannot claim any better interest than what the person conferring the title has in this behalf and he would be governed and bound by the Judgment and decree that may be passed in the suit. 12. Apart from the above Section 96 Civil Procedure Code which relates to the appeals is very widely worded and it has been provided that an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court. Similarly Section 223 of the Rajasthan Tenancy Act provides for appeal against the original decree is also worded in similar terms. Section 223 of the Rajasthan Tenancy Act reads as under :- “223. Appeals from original decree.-An appeal shall lie from an original decree- .(i) to the Collector if such decree is passed by a Tehsildar; and .(ii) tothe[revenue appellate authority] if such decree is passed by an Assistant Collector, a Sub-Divisional Officers or a Collector.” 13. Thus, the language used in the Section 96, Civil Procedure Code as well as one used in Section 223 of the Rajasthan Tenancy Act, 1955 are almost identical in terms. 14. In State of Punjab & Ors. vs. Amar Singh & Anr., (Supra), the Hon’ble Supreme Court has held while dealing with the provisions of Section 96, Civil Procedure Code, that “A person who is not a party to a decree or order may with the leave of the Court, prefer an appeal from such decree or order if he is either bound by the order or is aggrieved by it or is prejudicially affected by it”. 15. The petitioner who is the purchaser from Natthi defendant was bound by the decree passed against Natthi and since the Judgment and decree against Natthi prejudicially affected his rights was a person aggrieved and had a locus standi to prefer the appeal. 16. In view of the above, I am inclined to allow this writ petition setting aside the Judgment of learned Revenue Appellate Authority (Annexure-11) as well as that of the learned Board of Revenue (Annexure-12) and remand the case to the learned Revenue Appellate Authority to hear and decide the appeal in accordance with law. The parties are directed to appear before the learned Revenue Appellate Authority on 011.2006. 17. The parties are directed to appear before the learned Revenue Appellate Authority on 011.2006. 17. Learned Counsel for the petitioner submits that a direction may be issued that in view of the fact that the suit was filed as early as in the year 1979, the appeal may be heard early. The request made by the learned Counsel for the petitioner is accepted. Learned Revenue Appellate Authority is directed to decide the appeal, preferably within a period of six months of the receipt of certified copy of this order. 18. This writ petition as well as the stay application accordingly stands disposed of .