1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ::JUDGMENT:: D.B. CIVIL SPECIAL APPEAL (WRIT) NO.1433/2007 Rawata & Another Vs. Jagmal & Others Date of Order :: January 07, 2008 PRESENT HON'BLE THE CHIEF JUSTICE MR. NARAYAN ROY HON'BLE MR.JUSTICE R.M. LODHA Mr. K.K. Mehrishi Senior Advocate assisted by Mr. Harsh Kulshrestha for the appellants. Mr. R.S. Purohit, Pt. Umesh Purohit, Mr. Ajay Gupta for the contesting respondents. **** BY THE COURT :- Heard Mr. K.K. Mehirishi, the senior counsel for the appellants and Mr. R.S. Purohit, the counsel for the contesting respondents. Although the senior counsel for the appellants vehemently argued that summons were not served on appellant no.2, namely Pratap, we find that the finding of the Board of Revenue that in fact summons were served upon him is not flawed. Having been served, the appellant no.2 did not file any written statement. As a matter of fact, no written statement was filed by the appellant no.1 as well. Thus, the averments made in the plaint regarding the subject agricultural land being joint and ancestral property remained untraversed. The plaintiffs in support of their case produced jamabandi of Samwat Year 2012 and also subsequent jamabandi to show that the subject agricultural land was joint. No evidence to the contrary, save and except, the mutation recorded in favour of the appellants' father was led by the appellants. The legal position is no more res integra that mutation is only a fiscal entry and does not 2 substitute the record of right. Thus, the plaintiffs were able to establish that the subject land was joint. In the backdrop of the case of the plaintiffs that the subject land was joint property and that there was no evidence to prove otherwise and as a matter of fact, the trial court as well as the Board of Revenue having found this as a fact, in the light of the legal position that cultivatory possession of one co-sharer is to be deemed to be possession of the entire body of co-sharers, the plea of adverse possession made by the appellants (defendants) was devoid of any substance and the trial court as well as the Board of Revenue cannot be said to have erred in holding so. Mr. K.K. Mehrishi, the senior counsel for the appellants submitted that the Board of Revenue seriously erred in deciding the application for production of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure before the appeal was heard and decided. In this regard, he relied upon the decision of the Supreme Court in the case of State of Rajasthan Vs. T.N. Sahani, (2001) 10 Supreme Court Cases 619. There cannot be any doubt about the legal position that the application under Order 41 Rule 27 of the Code of Civil Procedure needs to be decided alongwith the appeal. This would have been proper course. However, from the perusal of the order of 1st August, 1991, we find that the application for production of additional evidence was pressed by the appellants and fully argued. In this situation, if the Board of Revenue decided the application before hearing the appeal, we do not find that the order of Board of Revenue in the appeal is rendered bad in law. Moreso, in its order dated 1st August, 1991, the Board of Revenue found that the documents sought to be 3 produced by way of additional evidence were not relevant in deciding the appeal. We, thus, do not find any merit in the contention of the senior counsel. Mr. K.K. Mehrishi, the senior counsel for the appellants would also contend that the application made under Order 8 Rules 1 and 9 of the Code of Civil Procedure to admit written statement was wrongly rejected by the order dated 19th August, 1992 by the Board of Revenue. In this regard, he placed reliance upon a decision of the Supreme Court in the case of Kailash Vs. Nanhku, (2005) 4 Supreme Court Case 480. We are afraid that reliance placed by the senior counsel upon the decision of the Supreme Court in the case of Kailash Vs. Nanhku (supra) is misplaced. In the present case, admittedly, an ex-parte decree came to be passed against the present appellants. Not only that the application for setting aside the ex-parte decree that was made before the trial court was not pressed purportedly because of the decision by the Revenue Appellate Authority. Be that as it may, the fact of the matter is that the decree passed against the appellants was ex-parte. In that backdrop, the application made by the appellants under Order 8 Rules 1 and 9 of the Code of Civil Procedure for grant of leave to file written statement was wholly misconceived and rightly rejected by the Board of Revenue. All these aspects have been considered by the Single Judge in the right perspective warranting no interference by us in this appeal. Special appeal does not deserve to be admitted. It is dismissed in limine. Skant/- (R.M. LODHA), J. (NARAYAN ROY), CJ.