AMITAVA ROY, J. - (1.) THE appellant-writ petitioner, defendant no.2 in Revenue Suit no.88/2002 (90/1996) pending in the Court of Assistant Collector, Osia District Jodhpur under sections 88, 188 and 92A of the Rajasthan Tenancy Act, 1955 (for short, hereafter referred to as "the Act"), seeks interference with the orders dated 14.12.2011 and 24.9.2005 passed by the learned Board of Revenue, Ajmer (for short, hereafter referred to as "the Board") and the Revenue Appellate Authority, Jodhpur respectively holding that the aforementioned suit had not abated due to the delay in substitution of heirs of Prithvi Singh (since deceased)-defendant no.1 therein, by the respondent no.5-plaintiff. These orders were affirmed by the learned Single Judge vide judgment and order dated 13.7.2012 while dismissing the S.B.Civil Writ Petition No.1119/2012 preferred by the appellant-writ petitioner.
(2.) WE have heard Mr.J.L.Purohit, learned counsel for the appellant. The facts briefly stated and leading to the institution of the present proceedings are that the respondent no.5-plaintiff Smt.Sohan Kanwar had instituted the aforementioned suit against Prithvi Singh (since deceased), appellant-writ petitioner and one Smt.Om Kanwar as defendants no.1, 2 and 3 respectively seeking decree for declaration and permanent injunction pertaining to the suit land. During the pendency of the suit, the defendant no.1 Prithvi Singh expired on 24.2.2002, but his heirs were not substituted within the prescribed period of limitation of 90 days. It was long thereafter that on 26.3.2003, according to the appellant-writ petitioner, that an unsigned application purportedly under Order 22 Rule 4 of the Code of Civil Procedure (for short, hereafter referred to as "the Code") was filed disclosing that the deceased-defendant no.1 had left behind Bagh Singh (appellant- writ petitoner), Surendra Singh and Basant Kanwar as his heirs and legal representatives, who in law, ought to be substituted in his place. The appellant-writ petitioner asserts that the said application was not supported by any affidavit and therefore, he resisted the prayer contending that it was not maintainable and further, that it was delayed and that in absence of any application for condonation of delay, it was liable to be rejected in limine. In his written objection, the appellant-writ petitioner also objected that he was not legal representative of deceased-defendant no.1 Prithvi Singh as he had been taken in adoption by one Ratan Singh during his (Prithvi Singh) life time. In her rejoinder, a stand was taken by respondent no.5-plaintiff that as required in law, the factum of death of the defendant no.1 Prithvi Singh ought to have been brought to the notice of the court through application under Order 22 Rule 10A of the Code and that the same having not been done, the plea of demur of delay is not tenable. It was, thereafter, that another application was filed under Order 22 Rule
(3.) OF the Code on 9.9.2003 alongwith application for condoantion of delay with the prayer for permitting substitution of the heirs of the deceased-defendant no.1 by condoning the delay that had occurred in between. No separate application for setting aside abatement was filed, according to the appellant-writ petitioner. 4. By order dated 30.9.2003, the Assistant Collector, Osia District Jodhpur rejected the application concluding that on the failure of the respondent no.5-plaintiff to substitute the heirs of deceased-defendant no.1 in time, the suit had abated as a whole. It was observed further that the appellant-writ petitioner Bagh Singh had been taken in adoption by one Ratan Singh. The respondent no.5-plaintiff being dissatisfied, preferred an appeal before the Revenue Appellate Authority, Jodhpur, who after hearing the parties, returned a finding vide order dated 24.9.2005 that as the appellant-writ petitioner as one of the heirs and legal representative of the deceased-defendant no.1 Prithvi Singh was already on record, the suit could not have been declared to have abated. It also issued a direction for having examined the aspect of adoption of the appellant-writ petitioner by one Ratan Singh by a competent court of law. The appellant-writ petitioner next took the challenge before the learned Board, which however, sustained the conclusions of the learned Revenue Appellate Authority. The learned Single Judge has also affirmed the findings and conclusions of the learned lower forums. Hence, the intra-court appeal. Mr.Purohit has emphatically argued that as admittedly the respondent no.5-plaintiff did fail to bring on record the heirs and legal representatives of deceased-defendant no.1 Prithvi Singh in time, the suit indeed had abated and that, therefore, the finding to the contrary recorded by the learned lower forums is clearly not sustainable in law. According to him, as the factum of death of Prithvi Singh was known to the respondent no.5-plaintiff immediately on his demise, the delay was inexplicable and thus, as a necessary legal consequence, on the failure of the substitution of his heirs and legal representatives within the time stipulated by law, the suit stood abated on the expiry thereof. He urged that as the appellant-writ petitioner was the adopted son of Ratan Singh, he could by no means be construed to be a heir and legal representative of deceased-defendant no.1 Prithvi Singh and thus, his existence as defendant no.2 in the suit does not save it from its abatement for the non-substitution of the heirs of the original defednant no.1-Prithvi Singh within the time prescribed.;