SINGH, J. - (1.) THE facts giving rise to this writ petition under Article 226 of the Constitution of India lie in a narrow campass as under : -
(2.) THE petitioners are the residents of village Nangal Nangli, Tehsil and District Alwar. Gangasingh, the predecessor of the petitioner was the resident of Kuthrawali Dudwa and after partition of the country in 1947, he migrated to India and permanently settled in the State of Rajasthan. Khasra Nos. 55/1-11, 63/1-16, 65/1-0, 68/1-0, 159/2-15, 127/2-6, 121/2-10, 108/0- 16, 109/2-11, 70 Min/1-9 and 60 Min/1-11, in all 9 Khasras, measuring 19 Bighas 5 biswas, of village Nangal Nangaii was evacue property and as such all these Khasra numbers were allotted to Ganga Singh, father of the petitioners No. l and 2, in the year 1950-51, in lieu of price of Rs. 1,069. 57 Paise. On 8. 6. 60, the deceased Ganga Singh, father of the petitioners No. 1 and 2, executed an agreement of the disputed land, in favourt of Ujagar Singh and Amar Singh which was registered on 17. 10. 60 whereby, Ujagar Singh and Amar Singh undertook to pay all the dues, balance of price and loan of the State Government and the Central Government and all arrears and they were to remain in possession and enjoy the usufruct of the land till the instalments of the price and loan, were paid off. During the aforesaid period, no allowance by way of mens profit for use and occupation of the land was to be paid to the deceased Gangasingh by Ujagar singh and Amar Singh, and when all the amount of arrears and loans had been paid from the usufruct of the land, Ujagarsingh and Amar Singh were to return the land to the deceased Gangasigh. After payment of full price of the land under Rule 5 of the Rajasthan Land Revenue (Permanent Allotment of Evacue Agricultural Lands) Rules, 1963, Ganga Singh acquired Khatedari rights. THE mutation was also effected in the revenue records by the Gram Panchayat in the name of Gangasingh. As per agreement dated 8. 6. 60 after the payment of Government dues Ujagarsingh and Amarsingh had no right to retain the land and, therefore, they became trespassers within the meaning of Section 5 (44) of the Rajasthan Tenancy Act, 1955. Ujagarsingh and Amarsingh refused to vacate the land and tried to establish adverse title over the land in dispute as against rights conferred on Gangasingh. Consequently, Gangasingh filed a suit under Section 183 of the Rajasthan Tenancy Act against Ujagarsingh, Jaswant Kaur and Katar Kaur being legal representatives of Amar Singh, as he died before the filing of the suit. In the suit , a prayer for ejectment was made and the petitioner also claimed for payment of compensation for use and occupation of the land. THE Sub Divisional Officer, Alwar, decreed the suit of Gangasingh vide order dated 27. 7. 70 and held the respondents-defendants to be trespassers. Ujagar Singh, Smt. Katar Kaur and Smt. Jaswant Kaur feeling aggrieved against the judgment & decree passed by the Sub Divisional Officer, Alwar dated 27. 7. 70 preferred an appeal before the Revenue Appellate Authority, Alwar and vide judgment dated 20. 6. 72 the order passed by the S. D. O. ,alwar was set-aside. Petitioners preferred Second Appeal before the Board of Revenue, Ajmer against the order passed by the Revenue Appellate Authority, Alwar and during the pendency of appeal Ujagarsingh had died on 9. 4. 75. It is alleged that the petitioners filed an application under Order 22 Rule 4 CPC and other application under Order 22 Rule 9 CPC stating therein that Ujagar Singh had expired on 9. 4. 75 and prayed that as appeal had abated because of non filing of an application for bringing the legal representatives of the deceased on record in time the abatement be set-aside. THE said application was dismissed by the Board of Revenue, Ajmer by the impugned-order dated 16. 11. 77. Feeling aggrieved against this order the petitioners have come to this Court in the instant writ petition. We have heard Miss Jyoli Pareek, learned counsel for the petitioners and Mr. R. K. Mathur, learned counsel , for Respondents and have also perused the material on record. The learned counsel for the petitioners contended that on admitted facts the application for bringing the legal heirs on record should have been filed by the petitioners on 8. 7. 75 whereas the same was filed on 11. 7. 75 and as such there has been only 3 days'delay in filing the application. The learned counsel for the petitioners further contended that the explanation for not filing the application within 90 days from the date of death of deceased Ujagar Singh was fully explained in the application filed by the petitioners under Order 22 Rule 4 CPC. We have perused the said application in which it has been stated that the petitioners were came to know about the death of Ujagar Singh in the month of April, 1975 thereupon, the petitioners were advised by their counsel to obtain certificate from Gram Panchayal, therefore, the petitioners moved an application before Gram Panchayal and obtained certificate only on 8. 7. 75. Thereafter, petitioners tried to contact their counsel at Ajmer, but their counsel was not available as he had gone to Alwar. The petitioners again went to his counsel and filed the application. In view of the said fact the learned counsel for the petitioners contended that the Board has committed an error in not condoning the delay in filing the application and acted illegally in refusing to set-aside the abatement order and wrongly held that the appeal has finally abated. The learned counsel , for Respondents has not been able to challenge the arguments advanced on behalf of the petitioners and infact half heartedly conceded that the delay was fully explained. . After hearing the learned counsel for the parties and perusal of the record, we are of the opinion that the delay of 3 days in filing the application for bringing the Legal Representatives on record was fully explained and should have been condoned and in our opinion the discretion has not been exercised judicially by the Board of Revenue in rejecting the application. In the result, the petition succeeds and is allowed. The impugned-order dated 16. 11. 77 passed by the Board of Revenue, Ajmer is quashed and the Board of Revenue is directed to decide the appeal on merit after bringing legal representatives of deceased Ujagar Singh on record. Parties are left to bear their own costs. . ;