JUDGMENT
Rajesh Balia, J.
1. This appeal has been filed with a very chequered background, a writ ‘petition No. 109/85 was filed by the legal representatives of Jeth Mal, the original plaintiff, against Abhay Singh S/o Daulat Singh, and Govind Singh, in which notices were ordered to be issued. However, during the pendency of that writ petition, Govind Singh died on 22.11.1986 and an application to implead his legal representatives was made on 13.2.1987. It further appears that process fee and notices were not filed by the counsel for the petitioner consistently. On 10.9.1993, the Court directed the petitioner to file Process Fee and notices within a week on the unserved respondents, with a peremptory directed that on failure to file Process Fee and notices, the writ petition shall stand automatically dismissed. Since the petitioner failed to comply with the direction, the petition stood automatically dismissed. This fact was recorded by the Deputy Registrar (Judicial) on 22nd February, 1994. Then, Restoration Application No. 2239/94 of the said Writ Petition No. 109/85 was filed. That restoration application came to be disposed of by order dated 29th July, 1997, by observing that there is no justification in keeping this restoration application pending and the writ petition was not dismissed, on merit, therefore, the petitioner shall be free to file fresh writ petition and the orders dated 10.9.1993/22.2.1994 shall not come in his way in filing fresh petition. Thereafter, the present petition has been filed on 13th January, 2000. The said petition has been dismissed by the learned Single Judge of this Court on the ground of laches. The appeal is against that order.
2. The other facts which need to be noticed at this juncture, are that originally, a suit was filed on 27.8.1996 in the Revenue Court by one Jeth Mal against Daulat Singh and Govind Singh, seeking eviction of the defendants from the land in dispute, inter alia, on the ground that both of them have trespassed over the land and are in joint possession thereof and cultivating the same. That suit was dismissed by the Sub-Divisional Officer. During the pendency of the appeal, an application was moved on 19.11.1975 on behalf of the defendant-respondent Govind Singh that Daulat Singh has died a year back and his legal representatives have not been brought on record, therefore, the appeal cannot proceed further. The plaintiff, instead of making an application for setting aside the abatement of appeal against Daulat Singh and bringing his legal representatives on record, contested the application, inter alia, on the ground that Govind Singh, who is real brother of Daulat Singh, is already on record, and, therefore, the appeal does not abate. The Revenue Appellate Authority held appeal against Daulat Singh has abated and that no effective decree can be passed against the remaining defendant-respondent, because both the defendants were in joint possession of the land and even in case, the decree is passed against Govind Singh, the legal representatives of Daulat Singh could not be evicted from the said property in the absence of any decree against Daulat Singh. That order has been affirmed by the Board of Revenue by order dated 31st December, 1980, relying on the principle enunciated in Rameshwar Prasad v. Shambeehari Lal , laying down that where in respect of a deceased, appeal is abated, decree in his favour has become final against his legal representatives not having been brought on record, it is against the scheme of the Code of Civil Procedure under Order 41, Rule 4, to pass a decree in favour of the legal representatives in exercise of power under Order 41. Rule 33, CPC The Board also found that in the absence of Daulat Singh who was in joint possession of the land in question allegedly trespassed, no effective decree could be passed in favour of the plaintiff in absence of one of the joint decree holder and, therefore, the appeal in its entirety must fail. A review application was also filed against the said order of the Board, alleging that at the time when the appeal was heard and decided, Jeth Mal appellant had already expired and the appeal was by a dead person. That review application was also rejected on 28.6.1984 and, thereafter, Writ Petition No. 109/85 has been preferred.
3. Having heard learned Counsel for the appellants, we are of the opinion that though in the circumstances of the present case, as disclosed in the petition, the writ petition did not merit dismissal on the ground of laches, but on the basis of the facts noticed above, the petitioner does not have any merit otherwise which ought to be entertained.
4. It is apparent that this Court has given liberty to the petitioners to file a fresh petition in respect of the very same subject-matter which was the subject matter of Writ Petition No. 109/85, by order dated 29th July, 1997. The petitioners filed along with the writ petition, two letters received from the counsel representing the petitioners at that stage dated 24.8.1999 (Annex: 2) and dated 25.8.1999 (Annex. 3). By first letter dated 24.8.1999, the petitioners were informed that Writ Petition No. 109/85 has been restored by the order dated 29th July, 1997, a copy of which was assured to be despatched, when obtained. By the second letter, the very same counsel informs that seeing the record of the Court, he has realised that the writ petition has not been restored on 29th July, 1997, but the application for restoration has been dismissed on 29.7.1997 and, therefore, he ought not act on the earlier letter. It is after receipt of this letter dated 25.8.1999, the present writ petition has been filed in January, 2000. In our opinion, the allegations in petition disclose serious dereliction in discharge of professional duty on the part of the counsel appearing for the petitioner by not prosecuting the case of the petitioner with due diligence and even informing the incorrect facts to the petitioner, in most reckless and casual manner. That too, after two years of the making of the order by the Court. If the facts stated in the petition are correct, it is sad commentary on the professional conduct of the learned Counsel in not attending the case for almost two years to find out as to what has happened to the restoration application which he was compelled to move because of his own failure to file process fee and notices. However that is a matter which is concerned for the Bar Council to look into. But the facts remain on the assertion made in the petition, the petitioner has made out that upto 24.8.1999, he was led to believe that his petition was still pending in High Court and he had no occasion to take the benefit of liberty granted to him vide order dated 29.7.1997, to file a afresh petition in respect of the same subject-matter.
5. However, coming over the difficulties of laches, will not automatically render the petition worth admission for causing notices to be served on the respondents to incur additional cost of litigating further, when we find that there is no merit on the substance of the matter. It is apparent that the petitioners’ predecessor-in-title has filed the suit for eviction against two persons who were in possession of the land in question jointly. The allegations against the two defendants were not that they were in possession of the separate portions of the land in question through different acts of trespass. If that were so, the joint suit was not maintainable. Suit was dismissed and both the defendants became joint decree holders. Be that as it may, this position is not in dispute that the legal representatives of Daulat Singh, the first defendant to leave to his heavenly abode, are too in possession of the land in question. It also does not need any argument that in the presence of other heirs and legal representatives, the brother of the deceased is not a person to whom right to sue survives and, therefore, his presence on the record could not have saved the abatement of appeal against Dalulat Singh before the Revenue Appellate Authority. The only question, thereafter now before us is where the appeal having abated against Daulat Singh and decree in his favour having become final, could still an effective decree be passed in favour of the plaintiff against the remaining respondent defendant. In the circumstances of the present case, it is apparent that the decree which was sought as a joint decree for eviction against the two defendants to get the complete relief of making the land free from trespass, could not have been granted by prosecuting the appeal against only one of the joint decree holders while heirs of the deceased decree holder’s heirs were remaining on the land in question. It would have resulted in two contradictory findings in the same case. As regards appeal before the Revenue Appellate Authority, it has proceeded to decide against Govind Singh as per the principle enunciated in Nemi Chand v. Harak Chand and Ors. I.L.R. 1964 14 Rajasthan 1069.
6. The appeal therefore, falls and is hereby dismissed.