- (1.) THIS appeal preferred by the Rajasthan Government against the order of the Jagir Commissioner, Jaipur dated 9. 9. 59 under Sec. 39 of the Rajasthan Land Reforms and Resumption or Jagirs Act, 1952 was heard on 22. 4. 60 and the judgment was reserved. On the next date 29. 4. 60 the learned Government Advocate made an application that one Shri Davendra Singh be also added as respondent along with Shri Ummed Singh who had already been cited as respondent. After giving notice to the respondent Ummed Singh, this application was heard and it was decided on 17. 11. 60 that in accordance with O. 41, r. 20 C. P. C. it was necessary to implead Davendra Singh as party and the Government Advocate was directed to take necessary action in this matter. Notices were served on Davendra Singh and as no appearance was put in on his behalf despite notice, orders were passed to proceed ex-parte against him. On the next date the counsel for Shri Davendra Singh who is a minor put in appearance and wanted time to move an application which was granted to him. No application has, however, been moved as yet. In the meantime the parties continued to have the case adjourned and it came for hearing to day. It was represented on behalf of Davendra Singh respondent that he was getting a chance of being heard only today he could question having been impleaded as respondent under O. 41, r. 20 C. P. C. on the ground that he was no longer interested in the result of the appeal" on the date it was moved on behalf of the Government to implead him as respondent because of the appeal against him having already been barred by time on that date.
(2.) IT has been contended on behalf of the learned Government Advocate that once an O. 41, r. 20 C. P. C. has been passed to implead Davendra Singh as respondent it cannot be questioned in any manner in this court at any stage whatsoever. The learned counsel for both the parties were allowed sufficient time to produce case law in support of their contentions but with no result. We may turn to the language of O. XLI, r, 20 itself to decide this point. This rule reads: "where it appears to the court at the hearing that any person who was a party to the suit in the court from whose decree the appal is preferred but who has not been made party to the appeal is interested in the result of the appeal the court may adjourn the hearing to a future date to be fixed by the court and direct that such person be made a respondent. " A bare reading of the above is sufficient to go to show that an order under this rule can be passed only when the party has not appeared and when the heating is adjourned for the purpose of making him a party. It lays down that when the case is adjourned acting under this Rule the court will direct that such person be made a "respondent. " When such a person is made a "respondent" he would be given a notice for appearing at the hearing of the appeal. He can naturally, therefore raise all objections available to him only when he appears in response to such a notice. He cannot therefore be debarred from being heard on any point he likes when the appeal is taken up for hearing in his presence. The contention of the learned Government Advocate that it cannot be at this stage questioned on behalf of Davendra Singh minor respondent that he has been wrongly impleaded as respondent cannot be called to be correct. It will even if there is no clear provision of law in this behalf amount to the violation of elementary principle of natural justice, if the respondent Davendra Singh is stopped from contending his liability to be impleaded as respondent under O. XLI, r. 20 CPC. We have, therefore heard the learned counsel for the parties at length in this behalf. This contention on behalf of respondent Davendra Singh is that the appeal against him having become time barred he had acquired a very valuable right which would be taken away from him if in appeal the decision is modified in any manner so as to affect the amount he is to get as co-heir and that therefore, he was no longer the person "interested in the result of appeal. " The reply on behalf of the Government is that this respondent is merely a co-sharer and that his share depends upon the total amount found payable by way of compensation and rehabilitation to the main Jagirdar, the other respondent against whom the appeal has been preferred in time and is in order and that therefore it is necessary that this respondent Davendra Singh be present on the record for the disposal of this appeal as a proper party to enable the court to make a proper adjudication and that in this sense he was a person "interested in the result of the appeal". Here we may pause to find out the exact position of respondent Davendra Singh vis-a vis the other respondent Ummed Singh from the facts on record. It would appear that the person from whose possession this Jagir was resumed was one Onkar Singh and it was he who had filed the claim under Sec. 31 of the Act. He died during the pendency of the proceedings and before the finalisation of the claim. The two respondents were found to be sons and were declared to be so by the learned Deputy Collector Jagir. On this basis the amount of compensation and rehabilitation finalised for the resumption of this Jagir was directed to be distributed equally amongst both of them. Davendra Singh is not therefore a co-sharer as contended by the learned Government Advocate but as good a Jagirdar or representative of the Jagirdar as the other respondent Ummed Singh. Both these brothers should have therefore been cited as respondents in the appeal. This is a case when the interest of the deceased Jagirdar survived in both of them and both of them could 'sue' i. e. prefer the claim for the amount of compensation and rehabilitation against the Government. The appeal could, therefore also lie against both of them and not only one. Had Davendra Singh been only the co-sharer of the Jagirdar whose Jagir had been resumed the position would have been certainly different and on the basis of the authority laid down in A, I. R. 1937 (Madras) 741 Swaminatha Odayar Vs. Gopalswami Odayar, the Co-sharer could have been treated to be a party 'interested in the result of the appeal', and he could not have been heard to say that his share having been finally worked out and the time for filing an appeal against him having expired he could not be called to be "interested in the result of the appeal" and should not therefore be made a party under O. XLI, r. 30 C. P. C. For as the very language of this Rule will go to show a party can be impleaded thereunder only after the expiry of time when the appeal comes for hearing. The test will be whether the party not impleading will be prejudiced by a modification made behind its back in the decree or order under appeal and not that only because of the expiry of the time prescribed a decree or order in his favour had become absolute and could not be interferred with on the basis of his having acquired a very valuable right. In the case of co-sharer obviously the share will depend upon the adjudication of the total amount payable the Jagirdar himself and therefore the co-sharer will have to be impleaded as respondent under the provisions of the above-referred to R. 20 to enable him be heard in support of the impugned judgment in the appeal or to pass the necessary order in the matter in the presence of all the parties concerned. The plea of bar by time will not affect the impleading of the respondent in such a case. In the instant case however the shares of the two respondents in the total amount or award being entirely separate and divided the position will not be the same. The respondent Davendra Singh minor has really acquired a valuable right for getting the amount awarded to be paid to him and that cannot be taken away, because of there being no connection there after between the interests of the two respondents simply by making use of the provisions of O. XLI, r. 20 C. P. C. He cannot be taken to be the party "interested in the result of the appeal" under the circumstances. Now, the question arises whether the appeal can proceed against the other respondent Ummed Singh alone or not. We do not think there can be any bar to it. The amount to be paid to him has been decided separately and finally and it has got nothing to do with the amount that is to be paid to his minor brother Davendra Singh. Such a parallel can be found in AIR 1940 (Patna) 671, Shiv Nandan Gope V. Shahadeo Khateek. In that case the appeal was referred by the plaintiff whose suit had been dismissed on the basis that the compromise entered into was not for the benefit of the minor defendants without impleading the minor defendants. A preliminary objection was taken that the appeal had abated. This was over-ruled. The basis was that the compromise was not void against the major defendants, and that the plaintiffs were satisfied with a decree against the major defendants only. The facts are not this quite similar. But still the principle deductible therefrom can be applied in all force to the facts of the present case as well. The award has been given in favour of respondent Ummed Singh and his minor brother Davendra Singh, the money is to be paid to both of them in equal shares. The amount payable to the minor cannot be questioned because of his not having been impleaded as respondent in time. But that alone cannot go to abate the appeal even against the respondent Ummed Singh. The amount allowed to him can always be determined on merits in the appeal filed against him alone without there being any necessity of bringing the minor brother as respondent and even in his absence. We, therefore proceed to determine this appeal so far as it concerns the amount ordered to be paid to the respondent Ummed Singh alone. We have heard the learned Government Advocate, therefore on merits against the respondent Ummed Singh who has preferred not to enter an appearance despite notice. The only item questioned on behalf of the State is the income allowed from sale of culturable land. It has been decided in Maharaj Hamir Singh's case reported at 1960 RRD 177 that the income from transfer of culturable land is not a sale in terms of clause 2 (f) of the second schedule of the Act. This appeal, therefore, so far as it relates to the share of this income allowed to respondent Ummed Singh is concerned deserves to be accepted and half of the income of Rs. 228-45 np. allowed under this head deserves to be reduced from the amount of compensation and rehabilitation allowed to him. This appeal is, therefore, accepted only against respondent Ummed Singh one of the sons of the Jagirdar Onkar Singh deceased and the order of the learned Addl. Jagir Commissioner amended so far as it relates to the income from sale of culturable land and direct that half the income allowed under this head Rs. 228-45 np. shall be deducted from the share of the net income calculated for awarding compensation and rehabilitation to this respondent Ummed Singh and the amount awardable to him amended accordingly. The appeal against the respondent Davendar Singh minor shall stand dismissed as being time-barred. . ;