SACHAR, J.—This writ petition challenges the impugned order of the Board of Revenue dated September 26, 1972 by which it held that the appeal of the petitioners had abated In entirety.

2. Plaintiff respondent filed a suit against the present petitioners and some other defendants on the allegation that the petitioners had forcibly occupied the land which the plaintiffs claim in their ownership. The disputed land was comprised in three Khatas, namely, Khata No. 116/1, Khata No. 117 and Khata No. 122/1. The defendants in their reply denied that they had forcibly occupied the land On the contrary, they pleaded that they were in occupation of the separate pieces of land for a number of years. In the written statement, the possession of different defendants to different numbers was separately mentioned as being in their possession since long. The trial court by its judgment dated April 20, 1956, dismissed the suit. The appellate court accepted the appeal and remanded the case. However, the second appeal before the Board of Revenue was accepted which set aside the order of the Revenue Appellate Authority and directed it to record evidence and give a fresh decision. In pursuance of this, the Revenue Appellate Authority decided the matter afresh and gave a judgment dated September 17, 1964. By this judgment, it was held that the plaintiffs had proved their title in the suit land mentioned in Khata No. 117. Regarding Khata No. 116/1, it found that plaintiffs have failed to prove their case accepting Survey No. 2589. Regarding Khata No. 122/1, it found that the defendants have proved their possession on Survey No. 2705 and held the possession of defendants as tresspasser in the rest of the land. It consequently passed a decree in favour of the plaintiffs directing that plaintiffs be put in possession of all Survey Nos. coming under Khata No. 117 and all Survey No. 2589 in Khata No. 116/1, and of all Survey Nos. excepting Survey No. 2705 in Khata No. 122/1. It also decreed that the plaintiffs be awarded compensation to the extent of three times the annual rent of the suit land which are ordered to be put their possession from the date of the dispossession to the date of restoration.

3. All the defendants filed an appeal before the Board of Revenue. During the pendency of the appeal, three of the defendant appellants, namely, Kachra son of Amarji, Dala son of Amarji and Bhimji s/o Lalji died. No legal representatives of the said deceased persons were brought on record within time. The Board of Revenue by its order dated July 27, 1971 held that the appeal had abated in so far as the deceased appellants were concerned and left the matter, whether the appeal could proceed, to be decided later on. Subsequently, the Divison Bench of the Board of Revenue by the impugned order held that the effect of not impleading the legal representatives of the deceased appellants Kachra son of Amarji, Dala son of Amarji and Bhimji son of Lalji is that the appeal abates in its entirety. It is against this order that the present writ petition has been filed.

4. There is no dispute about the order of July 21, 1971 by which it was held that the appeal shall abate so far as the deceased appellants-defendants were concerned. The only dispute is whether because of the non impleading of the legal representatives of the deceased appellants, the appeal cannot be proceeded with. The counsel for the petitioner Mr. Samdaria urges that the Board of Revenue was not right in holding that the whole appeal had abated and contends that the only result of the non impleading of the legal representatives of the deceased is that the appeal will abate qua the deceased only and not that the appeal cannot be proceeded with. In this connection, he refers us to Nanak vs. Ahmed Ali (1), In that case, the plain tiff brought a suit for cancellation of the sale deed executed by Gumani defendant No. 1 in favour of Nanak and Khair-ud-din defendants Nos. 2 and 3. The suit was dismissed by the cou

Click Here to Read the rest of this document