- (1.) THIS is the unsuccessful plaintiff's appeal from a judgment and decree of the Additional Commissioned, Jaipur, dated 28. 9. 55, which reversed a judgment and decree of the Assistant Collector, Alwar, dated 14. 7. 55, in favour of the plaintiff, whose suit for ejectment of the respondents from the land covered by khasra Nos. 78, 233/79, 338/88, and 186/2 was decreed by the trial court.
(2.) DURING the pendency of the appeal an application was submitted on behalf of Major T. N. Luther and Capt. P. N. Luther, under order. 22 Rules 10 and 11 alleging that during the pendency of the suit the land in dispute had been assigned to them by their father and in order to safeguard their interest they considered it necessary that they should be brought on the record with the leave of the court. This application was accompanied by affidavits in which it was set out that the land in dispute along with other lands situated in different villages had been assigned to them by means of a mutation on 22. 12. 1953. It was also stated in the affidavits that they had been in continuous army employment from 21st December, 1947 and 30th April, 1949 respec-tively as could be gathered from the notifications in the Gazette of India. This application was opposed on behalf of respondents on the ground that as the assignees had not applied during the pendency of the suit for being impleaded as a party to it they could not be legally brought on the record in the second appeal. It was also contended that this application was submitted in order to remedy a defect which had crept into the appeal and which, if allowed to persist would prove fatal. The appellant was not competent to lodge an appeal after he had assigned the property in dispute to his sons. It was also urged that as there was abnormal delay and latches on the part: of the applicants the leave of the Court should not be granted to them. Besides, there was no necessity for bringing them on record at a belated stage. It was further argued that there was evidence which indicated that the assignment bad taken place prior to the institution of the suit in the month of January, 1953. We have heard the learned counsel appearing for the parties on the preliminary point whether the applicants should be brought on the record in order to afford them an opportunity to look after their interest which was not being effectively safeguarded by their father before we allowed them to address arguments on the matter in controversy between the parties in the appeal. We have also carefully examined the record. Before we proceed to deal with the appeal on its merits we think it necessary to decide the preliminary point whether Major T. N. Luther and Capt. P. N. Luther should be allowed to be brought on the record. It in common ground between the parties that Major Ramnath, father of the applicants brought a suit for recovery of possession of land comprising khasra Nos. 78,233079,338/188, and 189/2, in the court of the Asstt. Collector, Alwar, on 14-2 1953. He is alleged to have assigned the property involved in the suit by mutation, dated 22. 12. 1953. His claim for recovery of possession of the land in dispute was decreed by the trial court on 14. 7. 1955. The defendant went in appeal to the learned Additional Commissioner, Jaipur who accepted it on a large number of grounds which may be briefly recapitulated as follows : - (1) It was clear from the statement of the plaintiff which was recorded in great detail by the trial court that the family arrangement by which the land in dispute had fallen to the share of his sons was arrived at in the month of Jan , 1953, i. e. , about a month prior to the institution of the suit. (2) The plaintiff had not adduced any cogent evidence on the point that the assignment had taken place during the pendency of the suit. (3) As the plaintiff had admittedly ceased to have any interest in the land in dispute its exemption from the operation of the provisions of the Rajasthan (Protection of Tenants) Ordinance, had also ceased as the said exemption could only be extended to the plaintiff on the ground that he was an ex-military employee. (4) The plaintiff bad not established by adducing reliable evidence that the assignees were also military employees or had been discharged from military service subsequent to the promulgation of the said Ordinance. (5) The trial court was not competent to take judicial notice of the fact that Major T. N. Luther and Capt P. N Luther, where in the Military employment of the Govt. on the crucial date. Their identity had not been determined. As their identity had not been determined they could not be exempted from the provisions of Rajasthan (Protection of Tenants) Ordinance. The defendants were entitled to protection under the Rajasthan (Protection of Tenants) Ordinance and were not liable to ejectment, so long as the said Ordinance was in force. Aggrieved by the decision of the learned Additional Commissioner Major Ramnath has preferred an appeal before the Board. During the pendency of the appeal his sons, who are admittedly in the military, submitted an application that they should be brought on the record and allowed to prosecute the appeal which was lodged by their father. As we have pointed out above the application was opposed by the respondents on a number of grounds which have been set out at considerable length. We shall deal with these grounds one by one. The learned counsel for the respondents has cited AIR. 1940 Madras 876. A. I R. 1949 Patna 177, AIR. 1934 Allahabad 442, A. I. R. 1936 Oudh 224, A. I. R. 1935 Lahore 119, in support of his contention that as the assignment was alleged to have been made during the pendency of the suit the sons of the appellant could not be brought on the record in second appeal. The main authorities on which he placed reliance were A. I. R. 1934 Allahabad 442 and A. I. R. 1936 Oudh 224, which were followed subsequently by the other High Courts in the decisions quoted above. The learned Judges of Allahabad High Court held that they had no jurisdiction to implead an assignee as a party to the appeal pending before them, as the assignment had been made in his favour during the pendency of the suit. In their view the world 'suit' in rule 10 was used by the Legislature in contra distinction to the word 'appeal' to the word appeal had to be substituted for the word 'suit' in Rule 10 of Order 22. They were of the opinion that if the legislature bad intended that the word 'suit' should be deemed to include an appeal, it would have been wholly superfluous to enact the provisions of Rule 11 of Order 22. The learned Judges of the Chief Court of Oudh followed the interpretation placed upon Rules 10 and 11 by the Allahabad High Court. These decisions were followed by the learned single judge of the Patna High Court in A. I. R. 1940, Patna 177, although the facts of that case were different and by a learned single Judge of the Madras High Court in 1947 Madras 876. The same view prevailed with a learned single Judge of the Lahore High Court in A. I. R. 1935 Lahore, 119, The learned Counsel for the applicants invited our attention to A. I. R. 1946 Lahore, page 34 and A T. R. 1944 Nagpur, page 137. These authorities dissent from the view of the Allahabad High Court and Oudh Chief Court and have adduced cogent reasons in support of their contention that the interpretation which has been placed upon Rules 10 and 11 by the Allahabad High Court and the Oudh Chief Court was manifestly incorrect and could not be made to harmonise with the wording of Rule 11, which runs as follows : - "in the application of this order to appeals, so far as may be, the word 'plaintiff' shall be held to include an appellant, the word 'defendant' a respondent, and the word 'suit' an appeal. It cannot be overlooked that Rules 10 and 11 have been enacted for the benefit of an assignee, but court is not bound to allow him to be brought on the record, although it must be conceded that the Court cannot arbitrarily reject the prayer for impleading him as a party to the suit or the appeal as the case may be. The word 'include' is substantially different from the word 'substituted'. The learned Judges of the Allahabad High Court proceed on the assumption that if the words, appellant, respondent, and appeal in Rule 11 were substituted for the words, plaintiff, defendant, and suit, it would appear that if there was an assignment during the pendency of a suit the applica*ion for being made a party ought to be filed during the suit and if there was an assignment during the pendency of the appeal, an application should be filed during the pendency of the appeal. There was absolutely no warrant for placing such a narrow construction on the language of Rule 11, which clearly points to the conclusion that the word 'suit' used in Rule 10 was to be read as including an appeal. The legislature clearly intended to obliterate the distinction between a suit and an appeal by enacting Rule 11. The Rule 11 cannot be regarded as being wholly superfluous. It had a specific purpose to serve. The provisions contained in Rules 10 and 11 are of an enabling character and entitle an assignee to be brought on the record with the leave of the court if he so desires. He may not choose to make an application, if he finds that his interests are being properly looked after and are not being jeopardised. As long as he of that view it is unnecessary for him to make an application. But when he is decides to make an application the court cannot turn it down on the ground that he should have made it much earlier as the assignment was made in his favour during the pendency of the suit and he was making an application during the pendency of an appeal. The word 'suit' used in Rule 10 should, therefore, be construed in such a manner as to include an 'appeal'. The appeal against the decree passed in the trial court is a continuation of the suit or as stated in (1901) 2, KB, 487, following 897 A. G. 177, an appeal is only a step in the original action. The Lahore and Nagpur High Courts, as we have indicated above are clearly of the opinion that if there was an assignment during the pendency of the suit in favour of a person he could be impeded as a party to the first or second appeal, even though he was not brought on the record during the pendency of the suit. It is also clear that Rule 10 is based on the principle that the trial of a suit cannot be arrested merely by reason of a devolution of the interest of a party in the subject-matter of the suit, that the person acquiring the interest may continue the suit with the leave of the court, and that if he does not choose to do so the suit may be continue i by the original party and the person acquiring the interest will be bound or can have the benefit of the decree as the case may be. No period of limitation is provided for bringing an assignee on the record. The matter is left entirely to the discretion of the court which has to be exercised in accordance with sound judicial principles. All that the court has to see in granting leave is to find out circumstances wherefrom it could be inferred that the application has been made in order to avoid multiplicity of proceedings and justice. Such an application should be allowed rather than dismissed. As we have indicated above no limitation has been prescribed for making such an application because it is not possible to say exactly when the interest of a particular person which are being looked after by another are not being effectively safeguarded. So long as an application is not made malafide, it should be allowed rather than rejected. Dealing with the remaining contentions together we may point out that Maj. Ramnath was competent to pursue the matter in appeal although he had assigned his interest in the land during the pendency of the suit. As we have indicated above the applicants were not bound to make an application so long as they were of the opinion that their interests were being properly looked after. There was no abnormal delay in making an application. They appeared on the scene and applied for being impleaded as a party to the appeal when they realised that their father was not effectively protecting their interest. Whether they considered it necessary to be impleaded as a party to the appeal or not is a matter which was left entirely to their decision. When they made up their minds to submit an application on the ground that their interests were not being properly looked after it devolved upon the court to determine whether they should be permitted to be brought on the record or not. We have carefully considered the arguments which were adduced by the learned counsel for the respondents in support of his contention that the application filed by Major T. N. Luther and Capt. P. N. Luther should be turned down and we are clearly of the opinion that in order to avoid multiplicity of proceedings between the parties it is necessary that leave should be granted to the applicants to be brought on the record. The contention that the assignment bad taken place prior to the institution of the suit, is not borne cut by documentary evidence which is furnished by the mutation, dated 22. 11. 53. It is an elementary rule of evidence that documentary evidence is to be given preference over oral evidence when it runs counter to it. In this case the statement of the plaintiff that the assignment had taken place in the month of January, 1953 cannot be torn from its context and given a meaning different from that which the plaintiff intended to convey. The statement has to be read as a whole ; it cannot be divorced from his subsequent statement that it is difficult for him to remember the exact date. His evidence on the point is certainly vague and is not entitled to much credit especially when it flies in the face of a cogent piece of documentary evidence furnished by the mutation. Taking all these factors into consideration we feel inclined to allow the application submitted by Major, T. N. Luther and Capt P. N. Luther and implead them, as a party to the appeal. After having decide the preliminary point we think it proper to deal with the grounds adduced by the learned Additional Commissioner in support of his finding that the trial court had erroneously decreed the suit of the plaintiffs. Before doing so we deem it proper to make a reference to the notification No. F. 1 (4) Rev. /51, dated 11th January, 1951 which was issued by the Govt. of Rajasthan exempting the land belonging to the military personnel who continued to be in the employment of the Government of those who had been discharged after the Rajasthan (Protection of Tenants) Ordinance had been promulgated, from its purview. The notification is in the following terms: - "in exercise of the powers conferred by sec. 15 of the Rajasthan (Protection of Tenants) Ordinance, 1949 (No. IX of 1949) the Government of Rajasthan is pleased to exempt the following lan from the provisions of the said Ordinance, namely : (1) Land belonging to persons who are in the military employment of the Government ; or (2) Land belonging to persons who were discharged from military employment of the Govt afterthe coming into force of the said Ordinance. " There is a great deal of force in the argument of the learned counsel for the appellants that as Major T. N. Luther and Capt. P. N. Luther were in the military employment of the Govt. and the land in dispute had entirely fallen to their share by a family arrangement which was arrived at during the pendency of the suit, the land belonging to them was exempt from the provisions of the Ordinance. With these observations we proceed to deal with the grounds adduced by the learned Additional Commissioner in support of his decision. So far as the first and second grounds are concerned as we have pointed out above, the evidence of the plaintiff that the assignment had taken place in the month of January, 1953, was watered down by his subsequent statement that he did not remember the date exactly and was, therefore, manifestly unreliable. It was contradicted by a piece of documentary evidence furnished by the mutation which was sanctioned on 22. 12. 1953 in order to give effect to the family arrangement which had been arrived at a few days earlier partitioning the entire property belonging to Major Ramnath. The documentary evidence is clearly entitled to a great deal of credit. Not a shred of evidence was adduced by the respondents in order to controvert it or to indicate that the assignment had taken place on a date different from that set out in the report of the Patwari. Dealing with the third ground we may observe that though the land had passed from the hands of the plaintiffs to his sons during the pendency of the suit the benefit of the exemption could also be extended to them as they were in continuous military employment from 1947 and 1949 respectively. They cannot be deprived of the benefit of the exemption on the ground that they were impleaded as a party to the appeal at a subsequent stage. The terms of the notification are sufficiently comprehensive to cover their case. So far as the fourth ground is concerned the learned Additional Commissioner was not justified in brushing aside a cogent piece of evidence which was furnished by the notifications in the Gazette of India indicating that Major T. N. Luther and Capt. P. N. Luther were in the military employment. It was hardly necessary for them to adduce any other evidence when a presumption could be raised on the point that these notifications were correct The trial court was justified in taking judicial notice of these notifications and attaching a great deal of weight to them. We do not feel impressed with the reasoning of the learned Additional Commissioner that the trial court should not have taken judicial notice of these notifications. Adverting to the last ground we may point out that the identity of Major T. N. Luther and Capt. P. N. Luther had been clearly determined by the notifications. It was hardly necessary to establish that they were the sons of Major Ramnath. All that was necessary was to prove that the land in dispute belonged to persons have filed affidavits before us in support of their applications that they should be impleaded as a party to the appeal. The facts set out in these affidavits have not been controverted by the respondents. For the foregoing reasons we are clearly of the opinion that the finding of the learned Additional Commissioner cannot be sustained. We therefore, accept the appeal, set aside his decision and remand the case to him with the direction that he shall hear the appeal on merits and come to a fresh decision in the matter. . ;