JUDGMENT : 1. This writ petition under Article 226 and 227 of the Constitution of India is directed against the judgment dated 24.08.2000 passed by the Board of Revenue, Ajmer, whereby, the second appeal filed by respondent No. 6 - Ganpat has been allowed and the judgment and decree dated 29.09.1997 passed by Additional Commissioner (Colonization) and Revenue Appellate Authority, Bikaner and judgment and decree dated 13.02.1997 passed by Assistant Commissioner (Colonization), Nohar Sahwa have been set aside and the suit filed by the plaintiff - Ganpat for partition has been decreed. 2. The facts in brief may be noticed thus : plaintiff - Ganpat filed a suit for partition, inter alia, with the averments that the land ad measuring 53 Bigha 10 Biswa at village Baramsar was of the Khatedari of Jetha Ram; the plaintiff was son of Bega Ram, who was son of Jetha Ram and the other defendants were all the part of family of late Jetha Ram; it was claimed that Jetha Ram had three sons and all the three sons/other respective heirs have ⅓rd share in the disputed land and, therefore, the same be partitioned. 3. The suit was resisted by Manphool - grand-son of Jetha Ram and son of Hajari; it was, inter alia, claimed that he was in exclusive possession of the land and before him, his father was in exclusive possession; during the life time of Jetha Ram, he gave other lands to his other two sons Bega Ram and Mana Ram and both of them lived separately and the suit land was exclusively given to Hajari with whom Jetha Ram lived; it was contended that the other two brothers of Hajari had no share in the disputed land and previously two suits were filed, one by Mana Ram and other by Mana Ram and Hari Ram S/o Bega Ram for declaration and partition of the same disputed property; the subject matter and cause of action in all three suits are same; Ganpat was also a party in the previously filed suits, wherein, he filed written statement supporting plea of the plaintiffs and, therefore, the present suit on the same cause of action was not maintainable. 4. 4. The Assistant Commissioner (Colonization) framed issues and evidence was led by the parties; the Assistant Commissioner (Colonization) by his judgment dated 13.02.1997 came to the conclusion that Jetha Ram expired in Samvat year 2006 and none of the parties had produced record for the period prior to Samvat 2012, Jetha Ram though expired before Samvat 2006, his name continued till Samvat 2027; the names of legal representatives in settlement from Samvat 2006 raises doubt and in Missal Bandobast from Samvat 2020 to 2039 the land was recorded in the name of Hajari S/o Jetha Ram and the suit has been filed in the year 1988; Jetha Ram was living with Hajari and the land in dispute came to his exclusive share, on which, he was in possession and, consequently, decided the issues against the plaintiff; regarding the issues pertaining to estoppel and res judicata on account of filing of the earlier suit, the issues were decided against the defendant. 5. Feeling aggrieved, Ganpat filed appeal. 6. The first appellate court by its judgment dated 29.09.1997 upheld the judgment passed by the Assistant Commissioner (Colonization) and on account of filing of two earlier suits came to the conclusion that the third suit was filed for harassing the defendant. 7. However, the Board of Revenue on second appeal came to the conclusion that the suit property admittedly belonged to Jetha Ram, who had three sons; the disputed land was recorded in the revenue record for Samvat 2012 to 2015 in the name of Jetha Ram and in Jamabandi for Samvat 2016-2019 also name of Jetha Ram along with his three sons was entered, which was scored out but in Misal Bandobast for Samvat 2029 to 2038 name of Hajari as Khatedar was indicated and in Khatoni Bandobast for Samvat 2029 to 2038 the same was recorded in the name of sons of Jetha Ram and as in Khasra Girdawari for Samvat 2012, 2014 and 2015 all three sons are recorded to be in possession and, in that view, all the three brothers were entitled for ⅓rd share and allowed the appeal as noticed hereinbefore. 8. 8. It appears that during pendency of the proceedings before the Board of Revenue, on 18.10.1997 Manphool sold the land in dispute to the petitioners and it is claimed by the petitioners that they were not aware of the pending proceedings before the Board of Revenue and, as such, they have preferred this writ petition. 9. It is submitted by learned counsel for the petitioners that the suit filed by Ganpat was ex facie barred by provisions of Order 9, Rule 9 CPC, inasmuch as, the two suits filed by Mana Ram and Mana Ram with Hari Ram respectively, seeking partition of the suit property, had been dismissed for non-prosecution, wherein, plaintiff Ganpat has also filled his consenting written statement; the suits having once been filed and the same having been dismissed by the jurisdictional courts for non-prosecution, the present third suit for the same purpose was not maintainable; it was also submitted that the exercise of jurisdiction by the Revenue Board under Section 224 of the Rajasthan Tenancy Act, 1955 was beyond the said provision, inasmuch as, none of the criteria, on which, the jurisdiction could be exercised was present in the case and, therefore, the Board of Revenue committed grave error in accepting the second appeal; it was also submitted that from the record it was proved that Manphool and prior to him Hajari were in possession and the land had been granted by Jetha Ram to Hajari and, therefore, it was Hajari only, who was the owner of the said land and the suit could not have been decreed in plaintiff's favour and on that count also the judgment passed by the Board of Revenue deserves to be set aside. 10. Learned counsel for the State supported the judgment passed by the Board of Revenue; it was submitted that the order has been passed based on the material available on record and after noticing that the judgments passed by the two courts below were against the record and, therefore, the judgments do not call for any interference. 11. I have considered the rival submissions made by learned counsel for the parties. 12. 11. I have considered the rival submissions made by learned counsel for the parties. 12. It would be noticed that the claim of plaintiff - Ganpat was that the land in dispute was owned by Jetha Ram, his grandfather and after his death, his three sons Bega Ram, Mana Ram and Hajari succeeded to the said property and as all the three sons had died, their heirs had their respective shares in the ⅓rd share, which was succeeded by each son and on that count the partition of the suit property was sought; the stand of Manphool son of Hajari, transferor to the petitioners, in his written statement (Annexure-2), which is relevant for the present petition, reads as under:- ^ ^ 6 ;g fd fooknxzLr vkjkth izfr0la0 10 ds firk ds fgLls esa vkbZ Fkh tks laor~ 2012 ls iwoZ dh mldh Lo;a dh fudyh gqbZ Hkwfe Fkh exj og la;qDr fgUnw [kkunku esa tsBkjke ds lkFk jgrk FkkA ogh dR;Z [kkunku FkkA blfy, dRrkZ [kkunku gksus ds dkj.k dkxtkr eky tsBkjke ds uke rS;kj gksrs jgsA ml le; izfroknh ds firk dks bldk bYe ugha FkkA gky tekcUnh laor~ 2029 ls 2038 eqrfyd dCtk dk'r ds lgh ntZ dh gSA oknh o vU; izfroknhx.k dk dksbZ gd o fgLlk ugha gSA en egt ykypo'k rgjhj dh x;h gSA ^ ^ 13. The stand of Manphool had been that the disputed land came to the share of his father i.e. Hajari and as he (Hajari) was living in joint Hindu family with Jetha Ram, who was Karta Khandan, the documents were prepared in the name of Jetha Ram and his father was not aware of the same; the possession as recorded in Samvat 2029-2038 was correct and the plaintiff and other defendants have no share. 14. 14. In view of the categoric stand taken by the defendant - Manphool that the land came to the share of Hajari and there was a joint Hindu family of Jetha Ram, of which, he was Karta Khandan and the documents were recorded in the name of Jetha Ram on that count, the said stand in written statement was sufficient for coming to the conclusion that the suit property was part of joint Hindu Family; however, the stand that the property fell to the share of Hajari has not been thereafter fortified by not claiming a prior partition and failure to indicate as to which part of the HUF property went to the share of Bega Ram and Mana Ram and, therefore, it cannot be said on facts as indicated by the Manphool himself that the suit property belonging to Jetha Ram was ever partitioned and/or the heirs of Bega Ram and Mana Ram had no share in the said property. 15. So far as the plea raised by learned counsel for the petitioners regarding applicability of Order 9, Rule 9 CPC is concerned, the issues framed by the Assistant Commissioner (colonization) regarding estoppel and res judicata were decided against Manphool; no cross-objection was filed before the first appellate court and the issue was not raised in the second appeal though the first appellate court while deciding the first appeal based its findings on account of filing/dismissal of the two earlier suits and, therefore, the petitioners are not entitled to re-agitate the said issue. 16. Provisions of Order 9, Rule 9 CPC read as under:- "9. Decree against plaintiff by default bars fresh suit. - (1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party." 17. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party." 17. A bare look at the said provision reveals that the "plaintiff", whose suit is wholly or partially dismissed under Rule 8, is precluded from bringing a fresh suit in respect of the same cause of action; admittedly, the two earlier suits were filed by Mana Ram along with Hari Ram and they were not filed by Ganpat and, therefore, as Ganpat was not the plaintiff in the said suits filed earlier and dismissed in default, it cannot be said that the suit filed by him would be barred under Order 9, Rule 9 CPC. 18. The fact that Ganpat had filed consenting written statement in one of the suits also does not alter the said position and does not make him a plaintiff. 19. Consequently, there is no substance in the submissions made by learned counsel for the petitioners based on provisions of Order 9, Rule 9 CPC. 20. So far as exercise of jurisdiction by the Board of Revenue under Section 224 of the Tenancy Act is concerned, the powers under Section 224 can be exercised on the following grounds:- "224. (i) the decision being contrary to law or to some usage having the force of law; (ii) the decision having failed to determine some material issue of law or usage having the force of law; (iii) a substantial error or defect in the procedure provided by or under this Act or by any other law for the time being in force, which may possibly have produced an error or defect in the decision of the case upon the merits; and (iv) the decision being contrary to the weight of evidence on record where the lower appellate court has varied or reversed any finding of the trial court on a question of fact." 21. The above provisions and the grounds reveal that the Board, if it comes to the conclusion that the decision of the appellate authority was contrary to the law or to some usages having force of law, decision had been arrived at without determination of some material issue of law or usages and a substantial error or defect in the procedure, it can exercise jurisdiction. 22. 22. In the present case, it would be noticed that both the authorities i.e. the Assistant Commissioner (Colonization) and the Additional Commissioner (Colonization) did not take into consideration the fundamental fact about the nature of the property and its effect on death of Jetha Ram and were swayed by the fact of filing of previous suits by Mana Ram and Hari Ram, which on face of it was contrary to law, therefore, the exercise of jurisdiction by the Board of Revenue cannot be faulted. 23. 23. The Board of Revenue by its impugned judgment came to the following conclusion while setting aside the judgments passed by the two courts below, which finding also cannot be faulted:- ^ ^ 10- ijh{k.k U;k;ky; }kjk nkok ,oa tokc nkos ds vk/kkj ij dqy 6 rufd;kr dk;e dh xbZ gS ftuesa rudh la[;k ,d eq[; gS tks fd fookfnr Hkwfe eqLrjdk oknh ,oa izfroknhx.k ds [kkrsnkjh ,oa dk'rdkjh dh gksuk ,oa mudk 1@3] 1@3 fgLlk gksuk ckcr gSA mijksDrkuqlkj miyC/k lk{;ksa ls ;g fufoZokfnr :i ls Li"V gS fd fookfnr Hkwfe tsBkjke ds [kkrsnkjh ,oa dCts dk'r dh Fkh ,oa tsBkjke }kjk gh fudkyh xbZ FkhA tsBkjke QkSr gks pqdk gS ,oa mlds rhu iq= csxkjke] ekukjke rFkk gtkjh jke gSA firk ds lEifRr esa rhuksa iq=ksa dk cjkcj dk fgLlk fgUnw mRrjkf/kdkj vf/kfu;e ds vuqlkj gksxkA tsBkjke }kjk mDr vkjkth;kr ds lEcU/k esa fdlh izdkj dh olh;r ;k vU; izdkj ls Hkwfe gtkjh jke dks vdsys dks nh tkuk ugha crk;k x;k gSA bl izdkj ;g Li"V gS fd fookfnr Hkwfe tsBkjke dh gksdj i{kdkjku dh iSr`d lEifRr gSA oknh vihykFkhZ ,oa izfroknh izR;FkhZ la[;k 1 o 2 csxkjke ds iq= gSa] izR;FkhZ la[;k 3 ls 9 ekukjke ds okfjl gSa ,oa izR;FkhZ la[;k 10 gtkjh jke dk iq= gSA fookfnr Hkwfe esa csxkjke dk 1@3 fgLlk] ekukjke dk 1@3 fgLlk ,oa gtkjh dk Hkh 1@3 fgLlk gksuk lkfcr gSA izfroknh la[;k 10 dk ;g dFku fd fookfnr Hkwfe ds vykok tsBkjke }kjk vius vius thou dky esa gh csxkjke ,oa ekukjke dks vyx ls Hkwfe ns nh Fkh] fdlh Hkh lk{; ls lkfcr ugha gksrk gSA ,slh fLFkfr esa fookfnr Hkwfe esa oknh izfroknh la[;k 1] 2 dk 1@3 fgLlk] izfroknh izR;FkhZ la[;k 3 ls 9 dk 1@3 fgLlk ,oa izR;FkhZ la[;k 10 dk 1@3 fgLlk gSA bl izdkj oknh vihykFkhZ ,oa izfroknh izR;FkhZx.k fookfnr Hkwfe ds lg dk'rdkj ,oa [kkrsnkj gS ,oa vius fgLls vuqlkj [kkrsnkjh vf/kdkjksa dh ?kks"k.kk djkus ,oa dCtk izkIr djus ds vf/kdkjh gSA ^ ^ 24. One of the grounds raised by learned counsel for the petitioners has been that the Board has indicated that all the three sons had equal share as per Hindu Succession Act and when Jetha had died even before coming into force of the said Act, it cannot be said that the property would be governed by Hindu Succession Act; the argument may be correct in form, but has no substance, inasmuch as, under the law prior to coming into force of Hindu Succession Act also, the property would devolve only on the three sons of Jetha Ram and to no one else. 25. In view of the above discussion, there is no substance in the writ petition and the same is, therefore, dismissed. The stay application is also dismissed. No order as to costs.Petition Dismissed.