Ranawat,C.J. - (1.) THIS is an application under Art. 226 of the Constitution of India. The petitioners Kuraji and five others have come to this Court against the order of the Board of Revenue dated the 15th of March, 1961 by which an appeal presented by the petitioners was dismissed for want of prosecution by a Single Member of the Board and the said order was upheld later on by a Division Bench of the Board by its judgment bearing no date in review application No. 2/1961. Tulsi Ram filed a suit against Kuraji and his sons in the court of the Assistant Collector Udaipur for ejectment. The case of the plaintiff was that he had purchased land Khasra No. 32/5 measuring 33 Bighas in village Charmar and that the opposite parties had entered into its possession illegally. The defendants contested the suit saying that the land was purchased from the joint family funds and even though the sale-deed may have been in the name of the plaintiff, he is not the exclusive owner of the land. The trial court dismissed the suit on the 3rd of December, 1957. The plaintiff went in appeal to the court of the Commissioner Udaipur and succeeded in obtaining a decree for ejectment on the 30th of March, 1960. The defendants then went in second appeal to the Board of Revenue. The Board directed the appellants to file process for serving one Jodhsingh from whom the plaintiff had purchased the land personally or for the joint family. The appellants failed to take steps for depositing process-fee and the case came up before a Single Member of the Board on the 15th of March, 1961. The learned Single Member dismissed the appeal in pursuance of rule 44 of the Revenue Courts Manual. The appellants moved a review petition, but it was dismissed by a Division Bench of the Board on the 15th of February, 1962.
(2.) THE petitioners have contended in this writ petition that the order of a single Member of the Board dismissing the appeal should not be regarded as an order of the Board, for, by virtue of rule 9, a single Member of the Board has no jurisdiction to dismiss an appeal. An order of dismissal of appeal can only be passed by a Division Bench of the Board under rule 9. It is next contended that Jodhsingh was not a necessary party to the suit for the appeal and default in serving Jodhsingh should not have the effect of dismissal of the appeal when all the necessary parties had been served. No reply has been filed by the opposite party to this writ petition. Mr. Chordia has appeared for opposite party No.2 and he has no answer to make to the first point canvassed by the learned counsel of the petitioner. Rule 8 of the Rajasthan Revenue Courts Manual gives a list of cases which may be heard and disposed of by a Member of the Board sitting singly as follows - "(i) Miscellaneous applications; (ii) applications for setting aside an order of dismissal for default by the Board or an exparte decision given by the Board; (iii) applications for review of the orders and judgments passed by a single member of the Board; (iv) references; (v) applications for transfer of cases." It is evident that an appeal from a decree in a revenue suit does not fall within anyone of the categories mentioned in rule 8. Rule 9 gives the categories of cases that may be heard and decided by a Division Bench and in item 1 it is mentioned that a Division Bench shall hear and decide cases of all decrees or orders coming under the consideration of the Board on appeal. This was an appeal from a decree passed by the Commissioner of Udaipur. This case was thus covered by the provision of rule 9 and it did not come in any one of the classes mentioned in rule 8. A single member of the Board had, therefore, no jurisdiction to dismiss a case of this class. The order of dismissal of appeal for want of prosecution by a single member of the Board is, under these circumstances, obviously without jurisdiction. This point was canvassed by the petitioners in their review petition, but it seems it escaped the notice of the Division Bench of the Board. This matter can be disposed of on the first point alone, but as the second point is of some importance, it would not be out of place to consider it as well. Rule 44 which has been reproduced in the judgment of the Division Bench of the Board no doubt provides for dismissal of an appeal for want of prosecution, but it is certainly open to the Board to apply its mind if the default committed by the appellant was such as to make the hearing of the appeal illegal. In a case where a party is not necessary, an appeal need not be dismissed for want of service nerely because he may have been a party to the litigation in the lower court. Jodhsingh sold land to the plaintiff and the contesting defendants and then he had no interest in it. He was made a pro forma defendant by the plaintiff and he was not a necessary party to the suit. In appeal also he might have been styled as a respondent, but having regard to the facts and circumstances of the case, he could not have been regarded as a necessary party. In this view of the matter, the order of dismissal of the appeal for want of service on a person who was not a necessary party cannot be considered to be proper. The writ petition is allowed and the order of a single member of the Board dated the 15th of March, 1961 is set aside and a direction is issued to the Board to hear and dispose of the appeal of the petitioners in accordance with law. We make no order as to costs.;