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[Citation : RLW 2010(1) RJ 524]
(Board of Revenue for Rajasthan)
Gulab Singh & Ors. Vs. Ummed Singh (Tiwari, M.)
G.K. TIWARI, MEMBER
TARA CHAND SAHARAN, MEMBER
Gulab Singh & Ors.
Versus
Ummed Singh
Appeal Decree/TA/9253 & 9254/2009/Nagaur, decided on 20.01.2010
The main contention of the learned counsel for the appellants is that the rule of primogeniture is not applicable after resumption of jagir. This is true; but the facts and circumstances of this case is altogether different, as the ex-jagirdar Daulat Singh had already given a part of his jagir lands to the four younger sons to the exclusion of the eldest son (respondent-plaintiff); thus he had already exercised his right u/Ss. 182 and 195 of the then Marwar Land Revenue Act, 1949 before resumption of jagir. (Para 13)
¼d½ ekjokM+ Hkw-jktLo vf/kfu;e] 1949] /kkjk 195] 182( jktLFkku dk'rdkjh vf/kfu;e] 1955] /kkjk 88] 89] 188 & T;s"BRo dk fu;e & fookfnr Hkwfe iwoZ tkxhjnkj dh Fkh ftlds ikap iq= Fks & tkxhj ds iqujkZEHk gksus ls iwoZ mlus vius thou dky esa gh dsoy pkjksa NksVs iq=ksa esa Hkwfe dk caVokjk dj fn;k vkSj izR;FkhZ oknh dks cM+k iq= gksus ds dkj.k NksM+ fn;k & vfHkfu/kkZfjr & 1949 ds vf/kfu;e dh /kkjk 195 ds rgr tkxhjnkj dks viuh tkxhj Hkwfe dk fgLlk mu ikfjokfjd iq:"k oa'ktksa dks lkSaius dk vf/kdkj Fkk tks tkxhj ds mRrjkf/kdkjh ugha cus vkSj tkxhj ds iqujkjEHk ls iwoZ vius thoudky ds nkSjku iwoZ tkxhjnkj us bl vf/kdkj dk iz;ksx fd;k & izR;FkhZ oknh dks ek= bl fy, ckgj j[kk x;k fd tkxhjnkj dh e`R;q ds i'pkr~ mls mldk mRrjkf/kdkjh cuuk Fkk & tkxhj vk;qDr us mlds i{k esa mRrjkf/kdkj izek.k i= tkjh fd;k ftls vkt fnukad rd pqUukSfr ugha nh xbZ gS & mUgha rF;ksa ds lEcU/k esa i'pkr~orhZ dk;Z esa ;g ,d focU/k ds :i esa izofrZr gksxk & gLr{ksi okaNuh; ughaA ¼in la[;k 9 ls 14½
(b) C.P.C., Order 1 Rule 10, Secs. 96, 100 — Second appeal — Maintainability — Appellant filed suit before S.D.O. — Application for becoming party — Rejected — Revision against the order of rejection was also dismissed by Board of Revenue — Filed application u/S. 96 CPC before RAA — Rejected — Held — Since applications u/O. 1 R. 10 CPC as well as u/S. 96 CPC stand finally rejected, no appeal would lie against the impugned judgment unless the order of rejection passed u/O. 1 R. 10 and Sec. 96 CPC is set aside — A regular suit filed by appellants is still pending in trial Court, so they cannot file appeal against the judgment and decree issued in another case — Second appeal is incompetent hence not maintainable. (Para 17)
Appeal dismissed in limini.
The appellants have already filed a suit in the Court of Sub-Divisional Officer, Nagaur pertaining to the disputed lands. An application filed by the appellants before Sub-Divisional Officer for becoming party to the suit No. 68/99 was rejected by the Trial Court and the revision against this order of rejection was also dismissed by the Board of Revenue, as are admitted by both the parties. Thereafter an application filed under Section 96 of the C.P.C. before. Revenue Appellate Authority was also rejected by the Revenue Appellate Authority. Since the applications under Order 1 Rule 10 of the C.P.C. as well as under Section 96 C.P.C. stand finally rejected, no appeal would lie against the impugned judgment unless the order of rejection passed under Order 1 Rule 10 and Section 96 of the C.P.C. is set aside. (Para 17)
¼[k½ fl-iz-la-] vkns'k 1 fu;e 10] /kkjk 96] 100 & f}rh; vihy & iks"k.kh;rk & vihykFkhZ us mi[k.M vf/kdkjh ds le{k okn nk;j fd;k & i{kdkj cuus gsrq vkosnu fd;k & fujLr gqvk & fujLrhdj.k ds vkns'k ds fo:) iqujh{k.k Hkh jktLo e.My }kjk [kkfjt gqbZ & vkj-,-,- ds le{k fl-iz-la- dh /kkjk 96 ds rgr vkosnu nk;j fd;k & fujLr gqvk & vfHkfu/kkZfjr & pwafd fl-iz-la- ds vkns'k 1 fu;e 10 ,oa /kkjk 96 ds rgr vkosnu vfUre :i ls fujLr gq,] vr% vk{ksfir fu.kZ; ds fo:) rc rd dksbZ vihy ugha gksxh tc rd fd fl-iz-la- ds vkns'k 1 fu;e 10 vkSj /kkjk 96 ds rgr fujLrhdj.k ds vkns'k vikLr ugha dj fn;s tkrs & vihykFkhZ }kjk nk;j fu;fer okn vHkh rd fopkj.k U;k;ky; ds le{k yfEcr gS vr% vU; ekeys esa tkjh fu.kZ; ,oa fMØh ds fo:) os vihy nk;j ugha dj ldrs & f}rh; vihy v{ke gS vr% iks"k.kh; ughaA ¼in la[;k 17½ vihy vkjEHk esa gh [kkfjt dhA
2. Briefly stated, the facts leading to the second appeals are that the respondent-plaintiff had filed a suit under Sections 88, 89 and 188 of the Act for grant of khatedari rights as well as ejectment of the defendants-appellants of the appeal No. 9253/09 in the Court of Assistant Collector (S.D.O.), Nagaur who allowed the suit by his judgment and decree dated 3.6.2009 which was challenged by the appellants before Revenue Appellate Authority, Nagaur through two different appeals preferred under Section 223 of the Act; whereupon Revenue Appellate Authority decided these two appeals through a common judgment dated 17.11.2009 by which both the first appeals were dismissed. Aggrieved against the impugned judgment dated 17.11.2009 of Revenue Appellate Authority, the appellants have preferred these two second appeals under Section 224 of the Act before this Court.
3. We have heard the learned counsels of all the parties.
4. The learned counsel for the appellants of appeal No. 9253/09 has contended that the disputed lands located in village Kadlu of Nagaur District belonged to the ex-jagirdar Daulat Singh (deceased) who is survived by five sons Gulab Singh, Guman Singh, Himmat Singh, Prem Singh (Appellants) and Ummed Singh (respondent). With resumption of jagir on 1.8.1954, late Daulat Singh, became khatedar tenant of the entire khudkasht lands recorded in his name. Thus, Daulat Singh was a khatedar tenant of the disputed lands. Daulat Singh died on 30.11.1962. After death of the khatedar Daulat Singh, the disputed lands were mutated in the names of all the five brothers through succession. Thus, all the brothers became equal co-tenants of the disputed lands. But one of the brothers Ummed Singh filed a suit before Sub-Divisional Officer, Nagaur for declaration of khatedari rights in respect of the entire disputed lands, and ejectment of the appellants from the suit lands on the ground that he, was the eldest son of the ex-jagirdar Daulat Singh and as such was entitled to succeed to his entire jagir lands by law of primogeniture. Assistant Collector (Sub-Divisional Officer). Nagaur illegally decreed the suit by his judgment dated 3.6.2009. The law of primogeniture is no longer in existence. All the jagirs were resumed on 1.8.1954. After this resumption the ex-jagirdar died on 30.11.1962 when Hindu Succession Act, 1956 had already come into force. Succession of Daulat Singh (deceased) is governed under the provisions of Section 8 of the Hindu Succession Act, according to which all the first class heirs are entitled to succeed to the disputed lands of the deceased khatedar who had died intestate; but the Trial Court as well as Revenue Appellate Authority overlooked this legal provision and allowed the suit on erroneous assumption of law of primogeniture. The learned counsel cited 1983 RLW 475 in support of his contention. It was also contended that since the jagir was resumed the impartible character of the disputed lands was lost and it had become a joint family property subject to the provisions of Hindu Succession Act, 1959 (sic. 1956) and the Rajasthan Tenancy Act of devolution of tenancy rights after death of the deceased khatedar. The learned counsel cited AIR 1982 (SC) 887, 2001(2) RRT 1078, AIR 1991 (SC) 1973 to support his plea. It was contended that though the trial Court had framed seven issues yet all the issues were not decided separately; so the judgment of the trial Court is not according to the provisions of Order 20, Rule 5 of
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