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2011 DIGILAW 74 (RAJ)

Shanti Lal v. Board of Revenue

2011-01-11

ARUN MISHRA, PRAKASH TATIA

body2011
JUDGMENT 1. - This intra-court appeal has been preferred to challenge the judgment dated 6-8-2009 passed by the single Bench of this Court by which the appellant writ petition No. 4300/2005 has been dismissed. 2. Brief facts of the case are that the plaintiffs-respondents Nos. 3 and 4 filed the suit for declaration and injunction under Sections 88 and 188 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as the Act of 1955 for short) against their father appellant (defendant) on the ground that the land in question is ancestral land. According to the respondents Nos. 3 and 4 after the death of their grand-father Mohan Lal, the property devolved upon the respondents Nos. 3 and 4 and upon the appellant (father of the respondents Nos. 3 and 4), therefore, they may be declared Khatedar tenant of the land in question. They also sought the relief of injunction against their own father the appellant that the appellant may not interfere in the peaceful possession of the respondents Nos. 3 and 4 over the land in question. In the suit before the Asstt. Collector, the present appellant filed a written statement and raised objection that his sister Kamla being the daughter of deceased Mohan Lal the ancestor of the parties to the suit was a necessary party. The issue on this objection was also framed by the trial Court. The trial Court dismissed the suit of the respondents Nos. 3 and 4 vide judgment and decree dated 2nd Sept., 1996 wherein one of the issue was that the plaintiffs (respondents Nos. 3 and 4) have not impleaded Kamla the daughter of the ancestor of the parties. The trial Court decided the issue No. 1 against the respondents Nos. 3 and 4 (plaintiffs) which was about plaintiff right in the property after the death of their grand-father and also decided the issue of injunction against the plaintiffs-respondents Nos. 3 and 4. The plaintiffs-respondents challenged the judgment and decree of the trial Court before the Revenue Appellate Authority, Pali, who allowed the appeal and set aside the judgment and decree of the trial Court and order to implead Kamla as party in the suit and remanded the matter for re-trial by judgment and decree dated 20-10-2000. 3. 3 and 4. The plaintiffs-respondents challenged the judgment and decree of the trial Court before the Revenue Appellate Authority, Pali, who allowed the appeal and set aside the judgment and decree of the trial Court and order to implead Kamla as party in the suit and remanded the matter for re-trial by judgment and decree dated 20-10-2000. 3. The appellant (defendant) being aggrieved against the order of remand passed by the Revenue Appellate Authority, Pali dated 20-10-2000 preferred second appeal before the Board of Revenue which was dismissed by the Board of Revenue vide order dated 24-6-2005. The Board of Revenue specifically held that trial Court even did not comply with the provisions of Order 20 Rule 5 Civil Procedure Code in writing the judgment and therefore also, the remand of the suit to the trial Court by the first appellate Court was just and legal. 4. Being aggrieved against the order passed by the Revenue Appellate Authority dated 20-10-2000 and upheld by the Board of Revenue vide order dated 26-4-2005, the petitioner preferred the present writ petition being SBCWP No. 4300/2005, which has been dismissed by the single Bench of this Court vide judgment dated 7-8-2000, hence, this intra Court appeal. 5. According to learned counsel for the appellant-petitioner firstly the plantiffs-respondents Nos. 3 and 4 did not choose to implead the necessary party and that was so even after specific objection raised by the appellant-defendant before the trial Court and, therefore, the trial court rightly decided the issue against the respondents Nos. 3 and 4 the plaintiffs. The respondents Nos. 3 and 4 even did not challenge that finding before the first appellate Court, which is apparent from the memo of appeal, yet the first appellate Court set aside the judgment and decree of the trial Court and directed to implead Kamla as party in the original suit and remanded the matter to the trial Court. According to learned counsel for the appellant even otherwise the respondents Nos. 3 and 4 suit was rightly dismissed by the trial Court because in the lifetime of the father of the respondents Nos. 3 and 4, the respondents Nos. According to learned counsel for the appellant even otherwise the respondents Nos. 3 and 4 suit was rightly dismissed by the trial Court because in the lifetime of the father of the respondents Nos. 3 and 4, the respondents Nos. 3 and 4 could not have claimed any right in the land in dispute in view of Section 8 of Hindu Succession Act, 1956, which specifically provides that property of a male Hindu dying intestate shall devolve according to the provisions of Chapter II of the Act of 1956 firstly, upon the heirs being the relatives specified in class I of the Schedule and the respondents Nos. 3 and 4 (plaintiffs) are not the heirs of their grand-father in the presence of their own father the appellant. 6. Learned counsel for the appellant relied upon the judgment of the Honble Supreme Court delivered in the case of Bachahan Devi & Anr. v. Nagar Nigam Gorakhpur and Anr. reported in 2008 DNJ (SC), 138 wherein scope of remand under Order 41 Rule 25 Civil Procedure Code has been considered in detail while accepting the view expressed by the High Court that order of remand should be passed rarely and in the fact of that case before the Honble Apex Court, the case in hand was not the rare case which could have been remanded and, therefore, the High Court was right in setting aside the order of the first appellate Court remanding the matter for decision on merits. According to learned counsel for the appellant in view of the above, the Revenue Appellate Authority and the Board of Revenue committed grave error of law in remanding and upholding the order of remand. 7. We considered the submissions of learned counsel for the appellant as well as learned counsel for the respondent and perused the record. We also perused the judgment delivered by the trial court in the light of the fact that Board of Revenue held that the trial Court has not complied with the provisions of Order 20 Rule 5 Civil Procedure Code in writing the judgment and we are in full agreement with the decision of the Board of Revenue after going through the judgment of the trial Court dated 2nd Sept., 1996. It is clear from the said judgment that an important issue of law about the rights of the sons of the appellant who were the plantiffs before the trial Court has not been examined in the light of any provisions of Hindu Law as well as under Section 8 of the Act of 1956. The trial Court failed to examine whether the provision of Section 6 of the Act of 1956 stands excluded particularly when the plaintiffs submitted that their grand-father daughter was not necessary party in the suit. Apart from above fact there is no consideration of any fact and evidence while deciding any of the issue. 8. In addition to above, we are of the opinion that there is no jurisdictional error in remanding the matter by the first appellate Court to the trial Court when the first appellate Court found that one of the person, who was necessary party, has been left out and in that situation, the court had jurisdiction to implead the party suo motu under Order 1 Rule 10 Civil Procedure Code and it was not necessary for the trial Court to dismiss the suit because of non-joinder of party and liberty could have been granted to the plaintiffs to implead the necessary party in the suit. 9. In view of the above reasons, there is no merits in this appeal and the same is hereby dismissed. No order as to costs.Appeal dismissed. *******