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2012 DIGILAW 2028 (RAJ)

Gopilal v. State of Rajasthan

2012-09-27

DINESH MAHESHWARI

body2012
JUDGMENT 1. - The plaintiff of the revenue suit bearing number 150/1980, has filed this writ petition essentially for being aggrieved of the judgment and decree dated 16.07.1996 as passed in Appeal No.89/93/Decree/TA/Chittorgarh whereby the Board of Revenue for Rajasthan at Ajmer (the Board of Revenue) allowed the appeal filed by the legal representatives of the original defendants and, while setting aside the judgment and decree dated 22.07.1993 as passed by the Revenue Appellate Authority, Udaipur (the RAA) in Appeal No. 138/1981, restored the order dated 12.06.1981 as passed by the Assistant Collector, Chittorgarh whereby the suit was dismissed as being barred by limitation. 2. While scanning through the record, for the position as has been noticed in regard to array of parties, this Court is clearly of the view that the petitioner is not entitled now to any relief in this writ petition; and no order or direction can be issued in his favour for the judgment and decree as passed by the Board of Revenue having inseparably become final in relation to one of the defendants to the suit. 3. It is noticed that the present petitioner Gopi Lal filed the revenue suit aforesaid leading to this writ petition against two defendants namely, Bhera son of Pratap Bheel and Mst. Jhamku daughter of Pratap Bheel, wife of Daya Ram Bheel. As noticed, the Assistant Collector dismissed the suit as being barred by limitation on 12.06.1981. The RAA ultimately allowed the appeal filed by the plaintiff-petitioner on 22.07.1993 and decreed the suit. Before the RAA, the arrayed respondents were Bhera son of Pratap Bheel, i.e., the defendant No. 1; and Nola son of Daya Ram Bheel and Mangu son of Daya Ram Bheel, both of them being the legal representatives of the defendant No. 2 Smt. Jhamku, wife of Daya Ram Bheel. The judgment and decree so passed by the RAA were questioned before the Board of Revenue in Appeal No.89/93/Decree/TA/Chittorgarh by the said three respondents i.e., the defendant No.1 and the legal representatives of defendant No.2. It appears that during pendency of the appeal before the Board of Revenue, the defendant No.1, Bhera son of Pratap Bheel also expired and his legal representatives namely, Naru (son) and Kanku (wife) were taken on record as appellants Nos. 1/1 and 1/2. On 16.07.1996, the Board of Revenue allowed the appeal and dismissed the suit. It appears that during pendency of the appeal before the Board of Revenue, the defendant No.1, Bhera son of Pratap Bheel also expired and his legal representatives namely, Naru (son) and Kanku (wife) were taken on record as appellants Nos. 1/1 and 1/2. On 16.07.1996, the Board of Revenue allowed the appeal and dismissed the suit. It further appears that a review petition was filed by the present petitioner before the Board of Revenue that was considered and dismissed on 25.11.1997. The persons who had been the appellants in the main appeal were arrayed as the non-petitioners in the said review petition before the Board of Revenue. 4. In the present petition against the judgment and decree dated 16.07.1996 as passed by the Board of Revenue, the plaintiff-petitioner has arrayed the State of Rajasthan through the Collector, the Board of Revenue, the RAA and the Assistant Collector as respondents Nos. 1 to 4 respectively; Naru son of Bhera Bheel and Smt. Kanku wife of Bhera Bheel as respondents Nos. 5 and 6 respectively; and Nola son of Daya Ram Bheel and Mangu son of Daya Ram Bheel as respondents Nos. 7 and 8 respectively. 5. A perusal of the record makes out that on 02.12.1999, an objection was raised on behalf of the contesting respondent that the respondent No. 8 Mangu had died on 16.11.1996 when the review petition was pending before the Board of Revenue and his legal representatives were not brought on record. However, on that date, the learned counsel for the petitioner was not present and the matter was adjourned. Then, on 05.07.2000, this Court considered an application moved on behalf of the petitioner seeking substitution of the legal representatives of respondent No. 7. The Court found that the application had not been signed by any counsel and there was no mention about the date of demise of the respondent No. 7; and the application was rejected with the observation that the same was rather an abuse of process of the Court. 6. Thereafter, this writ petition was considered on 19.11.2001 and after motion-hearing, was admitted in the presence of the learned counsel for the respondents Nos. 1 to 4. However, on that date, on the request as made, the names of respondents Nos. 6 and 7 were ordered to be struck out on account of their death. 7. 6. Thereafter, this writ petition was considered on 19.11.2001 and after motion-hearing, was admitted in the presence of the learned counsel for the respondents Nos. 1 to 4. However, on that date, on the request as made, the names of respondents Nos. 6 and 7 were ordered to be struck out on account of their death. 7. Thereafter, on 14.03.2002, another request was made by the learned Counsel for the petitioner for striking out the name of respondent No. 8 Mangu with the submissions that the petitioner did not want to bring his legal representatives on record. The contents of the order dated 14.03.2002 could be noticed as under:- "On the request of learned counsel for respondent No. 6-Smt. Kanku and respondent No. 7-Smt. Nola's name have been struck out, as per directions of this Court dated 19.11.2001. Today, counsel for the petitioner prays that respondent No. 8- Mangu has also passed away and he do not want to bring his LRs on record and requested to strike out his name. Prayer is granted. The remaining respondents have already been served. Put up in due course." 8. The net position obtaining now is that in this writ petition, the only private party is Naru as respondent No.5, who was on record before the Board of Revenue as one of the legal representatives of Bhera, the original defendant No.1. 9. Even if the deletion of the original respondent No. 6 of this writ petition, Smt. Kanku wife of Bhera, is ignored for the reason that Bhera's son Naru would be representing his estate, so far the other defendant, i.e., the defendant No. 2 Smt. Jhamku is concerned, both the persons representing her estate, i.e., her sons Nola and Mangu, who were originally joined as respondents Nos. 7 and 8 in this petition, have admittedly expired and their legal representatives have not been brought on record. In fact, as regards Mangu, the submission was made before the Court on 02.12.1999 that he had died even during pendency of the review petition before the Board of Revenue. 10. A look at the subject-matter of the case makes out that the petitioner had filed the suit aforesaid seeking declaration and recovery of possession of the agricultural land. Prior to filing of the suit, of course, he had the litigation with Pratap Bheel son of Gumana Bheel. 10. A look at the subject-matter of the case makes out that the petitioner had filed the suit aforesaid seeking declaration and recovery of possession of the agricultural land. Prior to filing of the suit, of course, he had the litigation with Pratap Bheel son of Gumana Bheel. However, the said Pratap Bheel had died and the suit was specifically filed against his son Bhera and his daughter Mst. Jhamku, who were arrayed as the original defendants. For the purpose of suit in question, Bhera and Mst. Jhamku carried the capacity of separate defendants and they cannot be considered representing the estate of each other. 11. It appears that upon expiry of Mst. Jhamku, her sons, Nola and Mangu were brought on record and hence, they were the respondents Nos. 2 and 3 in the appeal before the Revenue Appellate Authority; and they joined the appeal in the Board as the appellants Nos. 2 and 3. With striking out of the names of Nola and Mangu, the judgment and decree as standing in their favour, i.e., dismissal of the suit, has attained finality. Obviously that results in finality of the decree of dismissal of the suit qua the defendant No. 2. Once, the decree in favour of the defendant No. 2 attains and acquires finality, this Court is clearly of the opinion that no other order or decree could be considered in this writ petition because any order now in favour of the petitioner would be contradictory to the decree that has attained finality qua the defendant No. 2. 12. The learned counsel for the petitioner attempted to argue that the matter could be considered to the extent it relates to the respondent No. 5 Naru. The submission has only been noted to be rejected. Looking to the nature of suit and nature of the decree that remains inseparable and has indisputably attained finality qua one of the defendant, this Court is clearly of the view that no such order or direction could now be passed so as to treat the suit within limitation qua the respondent No. 5 Naru. Looking to the nature of suit and nature of the decree that remains inseparable and has indisputably attained finality qua one of the defendant, this Court is clearly of the view that no such order or direction could now be passed so as to treat the suit within limitation qua the respondent No. 5 Naru. In other words, no order could now be passed in favour of the petitioner contrary to the decree that has attained finality and whereby the suit stands dismissed as barred by limitation qua the defendant No. 2.In view of the above, this writ petition is required to be and is hereby dismissed.No costs.Petition dismissed. *******