1. This petition is directed against order dated 14.5.2014 of the Board of Revenue Rajasthan, Ajmer, whereby a revision petition preferred by the fourth respondent herein, against the order dated 11.9.2013 of Sub Divisional Officer (SDO), Churu, setting aside the ex parte decree dated 16.12.1997 passed in Revenue Suit No. 256 of 1997, has been allowed.

2. The relevant facts are that Gula was the khatedar tenant of land ad measuring 49 bighas 5 biswas comprising khasra No. 115 (new khasra No. 983, land measuring 31 bighas 15 biswas), situated at Churu. Gula was survived by two sons namely, Husain and Nabu and thus, Husain had ½ share in the land in question. Husain had three sons namely, Yasin, Saddiq and Hanif. Hanif having no issue, died intestate. Yasin s/o Husain filed a suit for declaration, permanent injunction and correction of record while impleading inter alia Sadiq as party defendant with the averments that as per settlement between the brothers, Sadiq while relinquishing his share in the land in question, kept the land and house situated at Sardarsahar in his share. The land in question was recorded in the name of Department of Custodian, Government of India and therefore, the plaintiff-Yasin claiming exclusive possession over 15 bighas and 17½ biswas land comprising khasra No. 983, sought declaration of his khatedari rights and prayed for correction of entries in the revenue record, alleged to have wrongly recorded in favour of Department of Custodian.

3. In the suit filed, the defendant No. 4-Sadiq did not put in appearance despite service and therefore, he was proceeded ex-parte. After due consideration of the evidence on record, the suit was decreed by the trial court as prayed for, vide judgment and decree dated 16.12.1997.

4. After a lapse of about 13 years, Smt. Bhanwari, widow of Abdul Sattar s/o Sadiq (since deceased), her sons Iqbal, Mumtaz and Jakir and daughters Munni and Razia, as legal heirs of Sadiq, filed an application under Order IX Rule 13 CPC accompanied by an application under Section 5 of Limitation Act, 1953, seeking setting aside of the ex parte decree, stating that Sadiq had expired on 28.3.1996 and his wife Smt. Umrav had expired on 7.5.2001 and thus, the decree passed against a dead person without impleading his legal representatives as party defendants, is nullity in the eyes of law. That apart, it was averred that Sadiq was never served with the summon issued by the court and therefore, the ex parte proceedings ordered against him vide order dated 22.8.1991 also deserves to be set aside.

5. In the application filed seeking condonation of delay in filing the application for setting aside the ex-parte decree, it was averred by the petitioners herein that they had no knowledge about the filing of the suit and the decree being passed therein and they have come to know about the same only when they approached the Patwari, Halka Town Churu, for the purpose of obtaining Kisan Credit Card against the land from the bank, who informed them that the name of Sadiq already stands deleted from the revenue record pursuant to the decree passed by the court.

6. The application was contested by the fourth respondent-Babu s/o Yasin, by filing a reply thereto.

7. After due consideration of the rival submissions, the trial court arrived at the finding that the service of summon upon Sadiq appears to be suspicious. The court observed that Yasin being brother of Sadiq, had knowledge about his death yet, the legal representatives of Sadiq were not brought on record and the suit was decreed ex parte against the dead person, which is not justified. The court observed that in the ancestral land, Sadiq had equal share and therefore, without giving him an opportunity of hearing, his share could not have been treated as relinquished. Accordingly, while allowing the application preferred under Order IX Rule 13 CPC preferred by the petitioners herein, the ex-parte judgment and decree was set aside by the trial co