The court emphasized that technicalities should not be allowed to annul the adjudication made by the trial court and the appellate authorities, and that substantial justice should be done to the litigants.

ORDER :

1. The facts in brief requiring for adjudication to the issue involved in the present writ petition are that the respondents/plaintiffs Jagmal Singh & others filed a suit in the Court of learned Sub Divisional Officer, Jhunjhunu, for partition in the ratio of 1/3 and 2/3 of the land bearing Khasra No.9/2 measuring 3 bigha 10 biswa, khasra No.13/1 measuring 102 bigha 10 biswa and khasra No.163 measuring 8 bigha 1 biswa situated at Village Farat, Tehsil Chirawa, District Jhunjhunu. On 30.08.1988 ex-parte proceeding were ordered against the petitioner defendants and the matter was fixed for the evidence of the plaintiffs. The Court of Assistant Collector, Chirawa (for short ‘the trial court’) after taking into consideration the plaintiffs evidence passed an ex-parte judgment and preliminary decree on 05.09.1988.

In the revenue suit it was averred that the plaintiffs and the defendants were belonging to the same family. The dispute was in regard to their ancestral property and both the parties were in continuous possession of the same from the time of their ancestors. It was stated that Ganpat and Chandra Ram were elders in the family and as such they were Karta thereof. During the lifetime of Chandra Ram, Gopal and Ganpat, the parties were cultivating the disputed land jointly by mutual arrangement. In that situation the legal partition of the land between the parties did not take place. It was stated that mutation No.64 of the disputed land was entered in the name of Chandra Ram s/o Shri Ramlal without the knowledge of the plaintiffs and contrary to their interest. When the plaintiffs came to know about the attestation of the mutation which is alleged to be done by collusion and without any basis as all the legal heirs of Chandra Ram had equal shares in the disputed land and the ancestors of these of three were entitled to 1/3rd share out of the total land, they have filed the suit for partition.

2. By the ex-parte judgment and preliminary decree dated 05.09.1988, the Tehsildar, Chirawa was ordered to perform the decree of partition of the subject property in the ratio of 1/3 to plaintiff Jagmal, 1/3 to Chandraram and 1/3 to Ganpat, the operative portion of which is reproduced as under:-

^^vr% okn oknhx.k fMØh fd;k tkdj oknhx.k dks Hkwfe [k0 ua09@2 jdck 3 ch?kk 10 fcLok] [ka0ua0 13@1 jdck 102 ch?kk 10 fcLok o [ka0 ua0 163 jdck 8 ch?kk 1 fcLok okds xzke QjV dk oknhx.k dks 1@3 fgLls dk [kkrsnkj dk'rdkj ?kksf"kr fd;k tkrk gS o oknhx.k 1@3 fgLlk dk caVokjk fd;k tkrk gS tks rglhynkj fpM+kok dks rgjhj tkjh gks fd og ekSds ij tkdj oknhx.k o izfroknhx.k dh Hkwfe [ka0 ua09@2 jdck 3 ch?kk 10 fcLok [k0ua0 13@1 jdck 102 ch?kk 10 fcLok [k0ua0 163 jdck 8 ch?kk 1 fcLok ekSds ij tkdj caVokjk fd;k tkdj cVokjs dh fjiksVZ U;k;ky; es is'k djs bl laca/k esa izkjafHkd fMØh tkjh dh tkosaA blh ds vuqlkj [krkSuh vyx&vyx dh tkosaA^^

3. Being aggrieved by the ex-parte judgment and the preliminary decree dated 05.09.1988 passed by the trial court, the defendants Rawat and Pratap preferred an appeal in the Court of learned Revenue Appellate Authority, Sikar (for short ‘the First Appellate Authority’), which was allowed vide judgment dated 07.01.1989 thereby setting aside the ex-parte judgment and preliminary decree dated 05.09.1988 passed by the trial court, the operative portion of which is reproduced as under:-

^^geus mijksDr cgl ij euu fd;k ,o v/khuLFk U;k;ky; dh i=koyh o bl U;k;ky; dh i=koyh dk v/;;u fd;k tks Li"V gS fd vihykUVl dk Lo0 firk pUnzk gh fooknkLin Hkwfe;ksa dk rukg [kkrsnkj d`"kd FkkA bl rF; dks fMliz;w djus ds fy, jsLiksMsUV@oknhx.k n~okjk bl U;k;ky; vFkok v/khuLFk U;k;ky; esa dksbZ Hkh vfHkys[k vFkok lk{; izLrqr ugha fd;k gSA v/khuLFk U;k;ky; esa okn dh iqf"V esa ,d ek= ekSf[kd lk{; izLrqr dh xbZ gS tks Lo;a oknh txeky dh gS] ftldk dksjkscksjs'ku vU; fdlh Hkh ekSf[kd vFkok fyf[kr lk{; n~okjk ugha fd;k x;k gSA ,slh fLFkfr esa jsLiksUMsUV@oknhx.k dk okn fdlh Hkh izdkj ls v/khuLFk U;k;ky; esa izekf.kr ugha gSA v/khuLFk U;k;ky; n~okjk jsL