Rajasthan High Court - Jodhpur
Mukesh Jain vs Shailesh Jaiman on 17 January, 2020
Author: Arun Bhansali
Bench: Arun Bhansali
(1 of 4) [CW-212/2020]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 212/2020
1. Mukesh Jain S/o Shri Roshanlal Jain, Aged About 45
Years, R/o 366, Ambamata Scheme, Udaipur (Rajasthan).
2. Monish Paliwal S/o Shri Bhanwarlal Ji Paliwal, Aged About
45 Years, R/o 30, Jagganath Marg, Inside Chanpole,
Udaipur (Rajasthan).
----Petitioners
Versus
1. Shailesh Jaiman S/o Shri Bharat Bhushan, R/o
Hiranmagri, Sector No. 11, Udaipur, At Present House No.
1/34 Housing Board Colony, Goverdhan Vilas, Udaipur.
2. Mohini Bai W/o Late Shri Padamsingh Rajput, R/o Kaya
Tehsil, Girwa, District Udaipur.
3. Basanti Bai D/o Late Shri Padamsingh Rajput, R/o Kaya
Tehsil, Girwa, District Udaipur.
4. Fatehsingh S/o Late Shri Padamsingh Rajput, R/o Kaya
Tehsil Girwa, District Udaipur.
5. Tina Kumari D/o Late Shri Padamsingh Rajput, R/o Kaya
Tehsil Girwa, District Udaipur.
----Respondents
For Petitioner(s) : Mr. Surendra Thanvi.
For Respondent(s) : Mr. O.P. Joshi.
Mr. Vinay Jain.
HON'BLE MR. JUSTICE ARUN BHANSALI
Order 17/01/2020 This writ petition has been filed by the petitioners aggrieved against the order dated 20.11.2019 passed by the Board of Revenue ('the Board'), whereby the order passed by the Revenue Appellate Authority ('the RAA') dated 29.07.2019 in appeal No. 24 (Downloaded on 17/01/2020 at 10:17:53 PM) (2 of 4) [CW-212/2020] of 2018, whereby the petitioners were impleaded as a party- respondents to the appeal, has been set aside.
The matter has a chequered history. The respondents No. 2 to 5 filed a suit for declaration and cancellation of sale-deed against the respondent No.1. The suit came to be decided ex- parte by judgment dated 20.02.2017 by the SDO, Girva, Udaipur, whereby respondents No. 2 to 5 were declared as Khatedars of the land in question. Whereafter, respondents No. 2 to 5 transferred a part of the land to the petitioners vide sale-deed dated 04.09.2017.
The respondent No.1 filed an application under Order IX, Rule 13 CPC, which application came to be allowed by order dated 06.02.2018 and the judgment & decree dated 20.02.2017 was set aside. Whereafter, respondent No.1 filed an application under Section 144 CPC seeking restoration of the revenue entries in his name.
Against the order passed by the SDO allowing the application under Order IX Rule 13 CPC, the respondents No. 2 to 5 filed revision petition before the Board, wherein the Board had called for the record, however, despite calling for the record, the application filed under Section 144 CPC came to be allowed by the SDO on 26.04.2018 and the revenue entries were ordered to be restored.
Feeling aggrieved, respondents No.2 to 5 filed appeal before the RAA and also filed application under Order XXII, Rule 10 CPC read with Order I, Rule 10 CPC for impleadment of the petitioners as party-respondents, which application was allowed by the RAA by its order dated 29.07.2019.
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(3 of 4) [CW-212/2020] Against the said order, the respondent No.1 filed revision petition before the Board. The Board vide its impugned order, only on account of the fact that in the appeal filed before the RAA, the respondents No. 2 to 5, did not disclose the fact of transfer of land to the petitioners, set aside the order passed by the RAA. Against the order passed by the Board, a review petition was filed, which was also rejected.
It is submitted by learned counsel for the petitioners that the Board was not justified in setting aside the order impleading the petitioners as party-respondents to the appeal before the RAA.
Submissions have been made that in view of express provisions of Order XXII, Rule 10 CPC, the petitioners were rightly impleaded as party and merely because the said fact of transfer was not disclosed in the memo of appeal, cannot be a reason for setting aside the order, which otherwise was justified in law.
Learned counsel for the respondents supported the order and reiterated the submissions that once the transfer had already taken place before filing of the appeal, it was incumbent on the appellants before the RAA to disclose the said fact and in absence whereof the order passed by the Board does not call for any interference.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
The facts are not in dispute, wherein transfer in favour of the petitioners took place after the ex-parte decree was passed by the SDO and, whereafter on account of filing of the application under Order IX Rule 13 CPC by the respondent No.1, the decree was set aside giving rise to filing of proceedings under Section 144 CPC, which was accepted by the SDO, against which, appeal was filed (Downloaded on 17/01/2020 at 10:17:53 PM) (4 of 4) [CW-212/2020] and the petitioners were not impleaded as a party, however, when the appellants before the RAA filed an application, the petitioners were impleaded as party by the RAA.
The setting aside of the order by the Board for non- disclosure at the time of filing of the appeal, cannot be sustained, inasmuch as, the said non-disclosure by the appellants cannot take away the rights of the petitioners, who are otherwise entitled for opportunity of hearing in view of the provisions of Order XXII, Rule 10 CPC.
The submission made that the said provision has no application to the facts of the case, has not substance, inasmuch as, while filing application under Section 144 CPC, the petitioners were not impleaded as party and in the appeal, the appellants i.e. respondents No.2 to 5 could not have impleaded the petitioners on their own and were required only to move the application under Order XXII, Rule 10/Order I, Rule 10 CPC.
In view thereof, the order passed by the Board of Revenue cannot be sustained.
Consequently, the writ petition filed by the petitioners is allowed. The order dated 20.11.2019 (Annex.-15) passed by the Board of Revenue is set aside and the order of the RAA dated 29.07.2019 is restored.
(ARUN BHANSALI),J 206-PKS/-
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