Rajasthan High Court – Jodhpur
Veer Singh vs Board Of Revenue ,Ajmer & Ors on 19 July, 2010
1 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 2 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 3 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 4 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 5 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.
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