- (1.) THIS is an application for review of the judgment of a Division Bench of the Board of Revenue dated 9. 11. 59. The judgment in question was delivered by a bench consisting of Shri Kanwar Bahadur and Shri, J. N. Kunzru, Members. Both of them have ceased to be attached to this Board, having proceeded on retirement and under these circumstances the application has been heard by us.
(2.) THE facts of the case leading to the application are these. THE applicants had brought a suit against the non-applicants seeking a declaration of their khatedari rights to the extent of 256 bighas out of holding of 2000 bighas held by Shri Hira Singh etc. jointly. THE trial court dismissed the suit whereupon the applicants preferred an appeal therefrom in the court of the learned Additional Commissioner, Bikaner. While the appeal was pending one of the respondents namely Tehlasingh died. Admittedly the appellants failed to bring the legal representatives of the deceased respondent on record. THE learned Additional Commissioner by his order dated 9. 8. 1958 held the appeal to have abated in toto. From this order the appellants preferred a second appeal before the Board which was again dismissed by an order of the Board which is now sought to be reviewed. It was contended before the learned bench that the Additional Commissioner was wrong in its interpretation and application of rule 4, order 22 C. P. C. This provision of law in its effect only intended to the abating of the appeal against the respondent who had died and whose legal representatives were not brought on record with the statutory period. Another contention raised was that in this case it was possible to ascertain the interest of the deceased respondent separately and therefore the appeal could proceed against the remaining respondent. Both these contentions were rejected in the order sought to be reviewed. Order 22 rule 4 was construed to have the effect of providing for the abatement of all appeals without exception in toto where legal representatives of one of the several respondents were not brought on record. It was also held that it was not necessary to ascertain the fact whether the interest of the deceased respondent could be ascertained separately from that of the remaining respondents. THE reason given was that the plaintiff himself has proceeded in his suit on the presumption that the land was held jointly by the respondents and the statements recorded by the court also showed the same thing. Now so far as the law on the subject is concerned it has been authoritatively laid down by the Supreme Court in A. I. R. 1962 S. C. page 89 that the order 22 rule 4 of the C. P. C. does not provide for the abatement of an appeal against the respondents other than the deceased and it was also held in this case that there can be no question of abatement of appeals against co-respondents. We therefore cannot help observing with all respects for our predecessors that the law was wrongly enunciated in their decision sought to be reviewed. The learned counsel for the non-applicant contends that even if we assume that the law was wrongly enunciated it would be at the maximum an error of law which would not constitute a valid ground for the review of the order. We are unable to subscribe to this view. If the error of the law was in its application we would have found force in the contention raised by the counsel for the non-applicants. The error of law was not in its application but in its enunciation. If we might say so with all respects for our predecessors rule 4 of order 22 has been clearly misread. We bold this in itself constitutes sufficient ground for the review of the impugned order. We feel confident in saying that had the learned members read the law as it stands they would have come to a different conclusion from the one they arrived at. Then in addition to above patent error of law we find that there is also an error of fact patent on the face of the record. On the question of face whether the shares of the defendants (respondents in this case) could be ascertained as separable in this case the learned members of the bench passing the impugned order observed that it was not necessary to do so in view of the plaint as well as the statements of the parties recorded by the trial court. In all respect, we would like to point out that for the purpose of finding out how the shares of right holders are to be treated the proper document to be referred to is the record of rights which has the value of presumption of truth in the eye of law. Statements made by the parties unless held to be sufficient rebuttal of record of rights cannot prevail against the entries in the record of rights. In this case in the record of rights not only separate shares of parties in joint holdings were recorded but also the measure of right or isekus gôh;r was ascertainable. This to our mind also constitutes a patent error on the face of the record. Thus taking the case as a whole we find much to our regret and in all respects to the learned bench that passed the impugned order that the order does contain patent errors of fact and law and these have to be reviewed. In this view we direct that the impugned order be set aside and the case be placed again before a division bench for fresh hearing. I respectfully agree with my learned colleague that this application for review should be granted. However, I must record with all respect that I do not agree that an order can be reviewed if it proceeds from an erroneous exposition of the law. This apart, the impugned order in this case was passed under a misconception of facts, the record of rights which indicated the respective shares of the respondents having been ignored. This in itself is an acceptable ground for review, for it is well settled law that a review is justified if the impugned order proceeds from a misconception of facts. . ;