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2013 DIGILAW 479 (RAJ)

Bagh Singh Bhati v. State of Rajasthan

2013-02-27

AMITAVA ROY, V.K.MATHUR

body2013
Hon'ble ROY, CJ.—The appellant-writ petitioner, defendant no.2 in Revenue Suit no.88/2002 (90/1996) pending in the Court of Assistant Collector, Osia District Jodhpur under sections 88, 188 and 92A of the Rajasthan Tenancy Act, 1955 (for short, hereafter referred to as “the Act”), seeks interference with the orders dated 14.12.2011 and 24.9.2005 passed by the learned Board of Revenue, Ajmer (for short, hereafter referred to as “the Board”) and the Revenue Appellate Authority, Jodhpur respectively holding that the aforementioned suit had not abated due to the delay in substitution of heirs of Prithvi Singh (since deceased)-defendant no.1 therein, by the respondent no.5-plaintiff. These orders were affirmed by the learned Single Judge vide judgment and order dated 13.7.2012 while dismissing the S.B.Civil Writ Petition No.1119/2012 preferred by the appellant-writ petitioner. 2. We have heard Mr.J.L.Purohit, learned counsel for the appellant. 3. The facts briefly stated and leading to the institution of the present proceedings are that the respondent no.5-plaintiff Smt.Sohan Kanwar had instituted the aforementioned suit against Prithvi Singh (since deceased), appellant-writ petitioner and one Smt.Om Kanwar as defendants no.1, 2 and 3 respectively seeking decree for declaration and permanent injunction pertaining to the suit land. During the pendency of the suit, the defendant no.1 Prithvi Singh expired on 24.2.2002, but his heirs were not substituted within the prescribed period of limitation of 90 days. It was long thereafter that on 26.3.2003, according to the appellant-writ petitioner, that an unsigned application purportedly under Order 22 Rule 4 of the Code of Civil Procedure (for short, hereafter referred to as “the Code”) was filed disclosing that the deceased-defendant no.1 had left behind Bagh Singh (appellantwrit petitoner), Surendra Singh and Basant Kanwar as his heirs and legal representatives, who in law, ought to be substituted in his place. The appellant-writ petitioner asserts that the said application was not supported by any affidavit and therefore, he resisted the prayer contending that it was not maintainable and further, that it was delayed and that in absence of any application for condonation of delay, it was liable to be rejected in limine. In his written objection, the appellant-writ petitioner also objected that he was not legal representative of deceased-defendant no.1 Prithvi Singh as he had been taken in adoption by one Ratan Singh during his (Prithvi Singh) life time. In his written objection, the appellant-writ petitioner also objected that he was not legal representative of deceased-defendant no.1 Prithvi Singh as he had been taken in adoption by one Ratan Singh during his (Prithvi Singh) life time. In her rejoinder, a stand was taken by respondent no.5-plaintiff that as required in law, the factum of death of the defendant no.1 Prithvi Singh ought to have been brought to the notice of the court through application under Order 22 Rule 10A of the Code and that the same having not been done, the plea of demur of delay is not tenable. It was, thereafter, that another application was filed under Order 22 Rule 4 of the Code on 9.9.2003 alongwith application for condonation of delay with the prayer for permitting substitution of the heirs of the deceased-defendant no.1 by condoning the delay that had occurred in between. No separate application for setting aside abatement was filed, according to the appellant-writ petitioner. 4. By order dated 30.9.2003, the Assistant Collector, Osia District Jodhpur rejected the application concluding that on the failure of the respondent no.5-plaintiff to substitute the heirs of deceased-defendant no.1 in time, the suit had abated as a whole. It was observed further that the appellant-writ petitioner Bagh Singh had been taken in adoption by one Ratan Singh. The respondent no.5-plaintiff being dissatisfied, preferred an appeal before the Revenue Appellate Authority, Jodhpur, who after hearing the parties, returned a finding vide order dated 24.9.2005 that as the appellant-writ petitioner as one of the heirs and legal representative of the deceased-defendant no.1 Prithvi Singh was already on record, the suit could not have been declared to have abated. It also issued a direction for having examined the aspect of adoption of the appellant-writ petitioner by one Ratan Singh by a competent court of law. The appellant-writ petitioner next took the challenge before the learned Board, which however, sustained the conclusions of the learned Revenue Appellate Authority. The learned Single Judge has also affirmed the findings and conclusions of the learned lower forums. Hence, the intra-court appeal. 5. Mr. Purohit has emphatically argued that as admittedly the respondent no.5-plaintiff did fail to bring on record the heirs and legal representatives of deceased-defendant no.1 Prithvi Singh in time, the suit indeed had abated and that, therefore, the finding to the contrary recorded by the learned lower forums is clearly not sustainable in law. Hence, the intra-court appeal. 5. Mr. Purohit has emphatically argued that as admittedly the respondent no.5-plaintiff did fail to bring on record the heirs and legal representatives of deceased-defendant no.1 Prithvi Singh in time, the suit indeed had abated and that, therefore, the finding to the contrary recorded by the learned lower forums is clearly not sustainable in law. According to him, as the factum of death of Prithvi Singh was known to the respondent no.5-plaintiff immediately on his demise, the delay was inexplicable and thus, as a necessary legal consequence, on the failure of the substitution of his heirs and legal representatives within the time stipulated by law, the suit stood abated on the expiry thereof. He urged that as the appellant-writ petitioner was the adopted son of Ratan Singh, he could by no means be construed to be a heir and legal representative of deceased-defendant no.1 Prithvi Singh and thus, his existence as defendant no.2 in the suit does not save it from its abatement for the non-substitution of the heirs of the original defednant no.1-Prithvi Singh within the time prescribed. 6. We have considered the pleadings and other documents on record to the extent necessary for answering the issues raised before us. 7. To start with, admittedly, the appellant-writ petitioner had at all points of time been arrayed as defendant no.2 in the suit. In the application dated 26.3.2003 filed by the respondent no.5-plaintiff, he has been shown to be one of the heirs of the deceased-defendant no.1 Prithvi Singh. The appellant-writ petitioner, however, in his reply to this application asserted that during the life time of the deceased-defendant no.1, he had been taken in adoption by one Ratan Singh and therefore, he had no right to continue with the suit on his (Prithvi Singh) behalf. As the order dated 30.9.2003 of the Assistant Collector would reveal, the said authority accepted this stand of the appellant-writ petitioner and therefore, declared that the suit had abated as a whole as the respodnent no.5-plaintiff could not substitute the heirs and legal representatives of the deceased-defendant no.1 Prithvi Singh within the prescribed time. In the memorandum of appeal filed by the respondent no.5-plaintiff before the Revenue Appellate Authority, Jodhpur, it is noticeable that the appellant-writ petitioner has been shown to be the son of Prithvi Singh-defendant no.1 (since deceased). In the memorandum of appeal filed by the respondent no.5-plaintiff before the Revenue Appellate Authority, Jodhpur, it is noticeable that the appellant-writ petitioner has been shown to be the son of Prithvi Singh-defendant no.1 (since deceased). This forum, as referred to hereinabove, keeping in view this aspect of the matter, held against the abatement of the suit, however, requiring this issue of adoption to be examined by a competent court of law. The learned Board, on a consideration of the pleadings of the parties and the materials available, recorded that the same revealed that the name of the father of the appellant-writ petitioner as referred to therein is Prithvi Singh, though it appeared that at some subsequent point of time he was taken in adoption by one Ratan Singh. It referred to some documents on record which disclosed that the appellant-writ petitioner was son of Prithvi Singh (since deceased) though there existed others disclosing the name of his adoptive father to be Ratan Singh. The learned Board recorded a finding of fact that essentially the appellant-writ petitioner was the son of Prithvi Singh, who at a later point of time, was adopted by one Ratan Singh. That there was no deed of adoption available on record was also mentioned. It noticed as well that in the plaint as well as the Vakalatnama, the father's name of the appellant-writ petitioner was shown to be Prithvi Singh. In absence of any conclusive evidence to establish that the appellant-writ petitioner had been validly adopted by Ratan Singh, as required in law, the learned Board declined to act on this claim of his and thus, concluded that in the face of his presence as defendant no.2 in the suit, the same did not abate. The learned Single Judge has also sustained the findings recorded by the learned lower forums. 8. On a consideration of the factual analysis undertaken by the learned Revenue Appellate Authority and the learned Board and the admitted presence of the appellant-writ petitioner as defendant no.2 in the suit at all relevant point of time, we do not feel inclined to draw a different conclusion. The learned Single Judge was right in affirming the findings and conclusions of the learned lower forums. As the suit is pending, we refrain at this stage from making any further observation on the aspect of adoption. The learned Single Judge was right in affirming the findings and conclusions of the learned lower forums. As the suit is pending, we refrain at this stage from making any further observation on the aspect of adoption. Suffice it to mention that in absence of any unimpeachable evidence as on date with regard to adoption of the appellant-writ petitioner by Ratan Singh as has been recorded by the learned lower forums as well as of the inevitable consequence of the abatement of the suit as a whole for non-substitution of the other heirs and legal representatives of the deceased-defendant no.1 Prithvi Singh in time, we are not inclined to interfere in the exercise of limited scope of interference in this intra-court appeal. It would be open for the appellant-writ petitioner, if so advised, to pursue his claim of adoption by Ratan Singh in the suit for necessary relief contemplated in law. 9. This appeal thus does not justify interference with the impugned judgment and order and the same is dismissed.