Veer Singh vs Board Of Revenue ,Ajmer & Ors on 19 July, 2010

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              S.B.CIVIL WRIT PETITION NO. 5922/2010
           Veer Singh         Vs.     Board of Revenue, Ajmer & Ors.

               Date of Order            ::        19.07.2010


                HON'BLE MR. JUSTICE GOVIND MATHUR

       Mr B.S. Sandhu, for the petitioner/s.
       Mr Trilok Joshi, for the respondent/s.
                                   ...

      One Shri Phusa @ Farsa Ram preferred a suit as per provisions of

Section 88, 53 and 188 of the Rajasthan Tenancy Act with an allegation

that Veer Singh and Kripal Singh have encroached upon the land owned

by him, and as such, he sought a decree of possession of land and a

declaration for his khatedari rights.        The suit aforesaid came to be

dismissed for want of prosecution on 19.5.1999. An application as per

provisions of Order IX Rule 9 read with Section 151 CPC was preferred by

one Sh. Lal Chand on 15.1.2008 claiming himself to be sole legal heir of

Phusa @ Farsa Ram who, as a matter of fact, died somewhere in the

year 1999 itself. An application as per provisions of Section 5 of the

Limitation Act was also filed seeking condonation of delay in filing the

application under Order IX Rule 9 CPC. In the applications aforesaid Sh.

Lal Chand stated that he is the sole legal heir of late Phusa @ Farsa

Ram who died issue-less, and prior to that, he executed a Will. A reply

to the application aforesaid was filed by the petitioner-defendant

stating therein that Phusa @ Farsa            Ram died issue-less and the

applicant Lal Chand is not his legal heir. The petitioner also created
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doubts about genuineness of the Will said to be executed by Phusa @

Farsa Ram in favour of Lal Chand. The Revenue Court by its order

dated 5.3.2010 accepted the application preferred under Order IX Rule 9

CPC by Lal Chand treating the same necessary in the interest of justice.

The sole discussion made by the revenue court while accepting the

application aforesaid reads as under:




              "प र क द र पस              वस य         म दर भमम पव व द म
       दर भमम क वववरण दर ह न क क रण पण सनव ई क र न
       आवशयक ह# ।       उच'      नय य क          ह   द न) पक) क सन र न
       आवशयक ह# र        मल व द क            पन: रस, र ककय र न पर ह.
       समभव ह सक          ह# ।       प र द र पस             ममय द अच1ननयम क
       1र 5 क       ह    प रन पत क धय न म रख                      हए प र क
       प रन पत अनदर ममय द प                  ह       ह# ।   अ : प रन पत प र
       सव क र ककय र           ह# एव7 पव व द पन: दर रजरस,र ककय र न
       क आदश ददय र            ह;।"



      A revision petition preferred by the present petitioner to

challenge the order dated 5.3.2010 also came to be rejected by the

Board of Revenue, Rajasthan on 16.4.2010. The Board of Revenue while

rejecting the revision petition affirmed the order passed by the trial

court simply by saying the same a reasonable one.




      The instant petition for writ is preferred questioning validity,

correctness and propriety of the order dated 16.4.2010 passed by the
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Board of Revenue, Ajmer, Rajasthan and the order dated 5.3.2010

passed by the trial court. The contention advanced on behalf of the

petitioner is that no application as per Order IX Rule 9 CPC is

maintainable on behalf of the applicant Lal Chand, as that could have

been filed only by the plaintiff. The applicant Lal Chand was never a

party to the proceedings of the suit, therefore, first without getting

substituted as plaintiff, no application submitted by him under Order IX

Rule 9 CPC could have been entertained. It is further submitted that

the trial court failed to appreciate that before accepting the application

under Order IX Rule 9 CPC, the issue regarding determination of legal

representative of late Phusa @ Farsa Ram was necessary to be settled,

and for that, necessary inquiry was required as per provisions of Order

XXII Rule 5 CPC.




         On the other hand the argument advanced by learned counsel for

the respondent Lal Chand is that the Will executed by Phusa @ Farsa

Ram in favour of applicant was registered one, and as such, that is self

established and no further inquiry was required to prove that. In view of

the Will, the applicant was rightly treated as sole legal representative of

Phusa @ Farsa Ram, and the suit, thus, was rightly restored by the trial

court.




         I have considered the arguments advanced.   The    language    of
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Order IX Rule 9 CPC is quite clear. The application for restoration of a

suit could have been filed only by plaintiff on dismissal of a suit under

Rule 8 Order XXII CPC. In the present case plaintiff Phusa @ Farsa Ram

died in the year 1999, thus, his case remained unrepresented.         The

applicant Lal Chand could have certainly pursued the suit, but before

substituting him as plaintiff, it was necessary for the trial court to

examine that whether the applicant is a genuine legal representative of

deceased plaintiff or not. Merely on the count that the Will happens to

be registered one, genuineness of its contents can not be accepted.

The trial court should have first made necessary inquiry as per provisions

of Order XXII Rule 5 CPC for determination of legal representative of

deceased plaintiff. In absence of such determination the acceptance of

the application under Order IX Rule 9 CPC       is erroneous. The courts

below without examining the legal position of the matter simply on the

count of reasonability accepted the application, which, as a matter of

fact, is not at all reasonable. Reasonability is sine qua non to adherence

of law and in the instant matter violation of that is apparent.




      For the reasons given above this petition for writ deserves

acceptance, and therefore, the same is allowed. The orders impugned

dated 5.3.2010 passed by the Sub Divisional Officer, Hanumangarh as

well as the order dated 16.4.2010 passed by the Board of Revenue,

Rajasthan are quashed. The matter is remitted to trial court i.e. Sub
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          Divisional Officer, Hanumangarh       to make necessary inquiry for

          determination of legal heirs of deceased plaintiff Phusa @ Farsa Ram as

          per provisions of Order XXII Rule 5 CPC and then to decide the

          application preferred by the applicant under Order IX Rule 9 CPC afresh

          in accordance with law.




                No order as to costs.

                                                   (GOVIND MATHUR), J.

Jgoyal’