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2015 Supreme(Raj) 485
(Rajasthan High Court)
LRs of Sal Khan Vs. State of Rajasthan & Ors. (Mathur, J.)
HON'BLE GOVIND MATHUR, J.
HON'BLE MISS JAISHREE THAKUR, J.
LRs of Sal Khan
Versus
State of Rajasthan & Ors.
D.B. Civil Special Appeal (W) No.1251 of 2013, decided on 24.07.2015
J.L. Purohit, Senior Advocate assisted by Ajay Purohit, for Appellant(s);
Varun Goyal, Caveator
Headnote:Rajasthan Tenancy Act, 1955, Sec. 88 read with C.P.C., Order 22 Rule 3 and Constitution of India, Art. 226 — Suit for decleration of khatedari rights filed before Assistant Collector and suit was dismissed — Plaintiff filed appeal before RAA and appeal accepted, decree of decleration and injunction issued — In appeal Board of Revenue dismissed the suit — Writ petition filed against dismissal Order of Revenue Board — During pendency of writ petition-plaintiff died — Legal representative not brought on record — Held — The issue has been decided against the dead person — Judgment passed by learned Single Bench is nonest — Order set-aside at the instance of legal representatives of deceased who were not brought on record — Remanded to learned Single Bench.
Appeal allowed. (Para 7)
jktLFkku dk'rdkjh vf/kfu;e] 1955] /kkjk 88 lifBr fl-iz-la-] vkns'k 22 fu;e 3 vkSj Hkkjr dk lafo/kku] vuqPNsn 226 & lgk;d dysDVj ds le{k [kkrsnkjh vf/kdkjksa dh ?kks"k.kkFkZ okn nk;j fd;k x;k tks [kkfjt gqvk & oknh us vkj-,-,- ds le{k vihy nk;j dh tks Lohdkj gqbZ rFkk ?kks"k.kk dh fMØh vkSj fu"ks?kkKk tkjh dh & vihy esa jktLo e.My esa okn [kkfjt fd;k & jktLo e.My }kjk [kkfjt fd;s x;s vkns'k ds fo:) fjV ;kfpdk nk;j dh & fjV ;kfpdk ds yfEcr jgus ds nkSjku oknh dh e`R;q gqbZ & fof/kd izfrfu/kh dks vfHkys[k ij ugha yk;k x;k & vfHkfu/kkZfjr & e`r O;fDr ds fo:) fook|d fofuf'pr fd;k x;k & fo}ku ,dy ihB }kjk ikfjr fu.kZ; ukfLr gS & e`rd ds fof/kd izfrfuf/k ds vk/kkj ij vkns'k vikLr fd;k ftls vfHkys[k ij ugha yk;k x;k & fo}ku~ ,dy ihB dks izfrizsf"kr fd;kA
vihy Lohdkj dhA ¼in la[;k 7½
2. In brief, facts of the case are that Shri Sal Khan S/o. Adrim Khan preferred a revenue suit before the court of learned Assistant Collector cum Pargana Adhikari, Barmer for declaration of khatedari rights relating to the land situated in Khasra No.1978, 1989, 1981, 2001, 2083 and 2010 village Ranasar, Tehsil Shiv, District Barmer measuring 277 Bighas. The suit was dismissed by the judgment dated 30.5.1978. Being aggrieved, plaintiff Sal Khan preferred an appeal before the Revenue Appellate Authority, that came to be accepted under a judgment dated 29.12.1980. The learned Revenue Appellate Authority accepted the suit and issued a decree of declaration and injunction. The Tehsildar, Shiv and the State of Rajasthan questioned correctness of the judgment dated 29.12.1980 passed by the Revenue Appellate Authority by way of filing an appeal before the Board of Revenue. The Board of Revenue altered the judgment given by the Revenue Appellate Authority and dismissed the suit. To challenge the judgment given by the Board of Revenue Shri Sal Khan preferred a petition for writ (S.B. Civil Writ Petition No.3458/1989) before a Single Bench of Rajasthan High Court and that came to be accepted by the judgment dated 9.7.1998. To challenge the judgment passed by learned Single Bench, an appeal was preferred before Division Bench of this Court and that came to be decided on 20.7.2010. The learned Division Bench set aside the judgment dated 9.7.1998 passed by the learned Single Bench and remanded the matter to the writ court for adjudication of the writ petition afresh. Suffice it to mention that the Division Bench accepted the appeal by observation that :
“The writ court failed to appreciate that the High Court under Article 227 of the Constitution is confined only to see whether any inferior court or tribunal has proceeded within its parameters and not to correct any error apparent on the fact of the record, much less of an error of law. The High Court while exercising its supervisory jurisdiction under Article 227 of the Constitution does not act as an appellate court of the tribunal and while exercising such jurisdiction, the High Court must not review or reweigh the evidence on which the inferior court or tribunal purports to have passed an order or to correct errors of law in the decision.”
3. Learned Single Bench as per the directions given by Division Bench re-heard the writ petition and decided the same by the judgment dated 24.9.2013. During pendency of the writ petition, the petitioner-plaintiff Sal Khan died but unfortunately the factum of his death was not brought to the notice of writ court as no application was made either to delete his name or to substitute him by his legal representatives. The writ petition was considered and decided on its merits in absence of the writ petitioners legal representatives.
4. In this appeal the legal representatives of Sal Khan have moved an application as per provisions of Order 22 Rule 3 Code of Civil Procedure to be substituted as appellant, being legal heirs of Shri Sal Khan.
5. Learned counsel for the caveator Shri Varun Goyal is having no objection for that.
6. Accordingly, the application is allowed. Legal heirs of Shri Sal Khan referred in the application be taken on record as appellants No.1/1 to 1/6. The amended cause-title has already been made available on record, same be treated as part of appeal.
7. It is submitted by learned counsel for the appellant that a party to lis if expires, then the lis comes to an end on the death of party and that can be revived only when the deceased legal representatives are brought on record. So long as the legal representatives are not brought on record by taking recourse to Order 22 of the Code of Civil Procedure either at the instance of party to the lis or by legal representatives of deceased themselves, as the case may be, the Court which was ceased of the lis has no jurisdi
