1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T SPL. APPL. WRIT No. 905 of 2000 MANPHOOL V/S BOARD OF REVENUE & ORS. Date of Judgment : 21.7.2009 PRESENT HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI GOVIND MATHUR,J. Mr. BL PUROHIT, Mr. RAJEEV PUROHIT, for the appellant Mr. SL JAIN, for the respondent BY THE COURT : (PER HON'BLE GUPTA,J.) This appeal has a long chequered history ultimately culminating into the order of the learned Single Judge dt. 22.8.2000 allowing the writ petition of the present private respondent no. 20, and thereby setting aside the order of learned Board of Revenue dt. 8.3.1995 produced as Annexure-3 and that of the learned S.D.O. dt. 28.3.1987 Annexure-1 which is subject matter of challenge before us. Since in the order dt. 10.1.2001, it was noticed by the Court that the controversy involved in this special appeal is as to whether summons on Ladu Ram for appearance on 13.1.1987 before the Assistant Collector, Suratgarh was served on him or not, and photostat copy of the summons shows that there is a thumb impression of Ladu Ram, it was thought 2 appropriate to call for the record of the Case No. 112/86 (decided on 28.3.1987) from the Court of Assistant Collector Suratgarh, and that of the Board of Revenue being that of Revision No. 26/92/T.A./Ganganagar decided on 8.3.1995. In compliance thereof record was received, and then vide order dt. 6.9.2001 the appeal was admitted. We have perused the record, and at the outset we may observe that the summon issued to Ladu Ram for hearing of 13.1.1987 does bear the thumb impression of Ladu Ram in token of his having received summon on 5.1.1987. This is one aspect of the matter. The learned Single Judge has found that the non service of summons cannot be equated with the irregularity in the service of summons, and it was found that when Uda Ram had accepted the summons of Ladu Ram which has not been accepted to be sufficient and notices were issued afresh for 13.1.1987, it was not open for the Court now to turn back on tendering the summons of petitioner to his brother Uda Ram and to raise the plea of irregularity of service. Then, it was held that even otherwise as pointed out above service on Uda Ram cannot be considered to be a service at all on Ladu Ram even by way of alternative mode, and thus the proviso to O. 9 Rule 13 was found to have no application. As against this, as we find from the original record of the trial court that on 30.12.1986 Vakalatnama was filed on behalf of Uda Ram, and fresh summmons were issued to other defendants. 3 Then, on 13.1.1987 the summons of Ladu Ram did not come to be received by trial court after service, and therefore, fresh summons were ordered to be issued for 4.2.1987. Then, on 4.2.1987 it was noticed that summons of Ladu Ram had been served but he did not appear therefore the matter was ordered to proceed exparte. In that view of the matter, this conclusion arrived at by the learned Single Judge cannot stand on the face of the summons of Ladu Ram, which are available on the record. The matter does not end here inasmuch as, the learned Single Judge, then on page 10 onwards has proceeded to examine the merits of the case, and has found, that the suit as filed was not maintainable/entertainable much less could be decreed. In that view of the matter we have gone through the record on this aspect of the matter. Arguing the appeal on this aspect it was submitted on the authority of Division Bench judgment of this Court in Kistoormall Vs. Sattar Mohamed reported in AIR 1958 Rajasthan-276 that under Section 31 of the Specific Relief Act a separate suit is maintainable for rectification of the mistake in the decree. In that case a rectification of the boundary of the mortgaged property was sought, as the mistake occurred was a mutual mistake of the parties to the mortgaged transaction, as it crept in the mortgage itself, which percolated down to decree, which was a compromise decree, and it was found that the decree is 4 a instrument of contract made by the hand of the Court but by will of the party, it was open to the corrected by separate suit as it contain mutual mistake. On that basis it was submitted that in the decree passed on 23.8.1976 in suit No. 12/72, the shares of some of the defendants therein, being Surja Ram, Ram Rakh, Het Ram, Hari Ram sons of Dalu Ram was found to be 42 Bighas and odd, while it should have been 44 Bighas and odd, and since this is mistake in the decree, as the share of those defendants had been found to be lesser to the extent of 1 Bigha 16 biswas 2 biswansi, is liable to be corrected. In order to appreciate the contention we went through the record of the suit, and significantly found, that the decree in Suit No. 12/72 was passed on 23.8.1976, which purports to be Ex. 2, available in the present suit, and is a final decree in a suit for partition. Purported Ex. P-1 is the order sheet recording that no objection had been received against the proposed partition, and therefore, final decree be prepared according to the proposal. Obviously the respective shares of the parties must have been decided by the preliminary decree, which was not under challenge, and had not been produced. The other aspect of the matter is, that admittedly the appellant purchased the land from the aforesaid defendants Surja Ram, Ram Rakh, Het Ram, and Hari Ram during pendency of the suit NO. 12/72, and admittedly they did not exercise option available 5 to them under O. 22 Rule 10 C.P.C., by seeking leave of the Court to continue the litigation. With the result, that by virtue of Section 52 of the Transfer of Property Act, on the principle of lis pendence, the appellants stand bound by the decree. Then, a look at the plaint shows that even on the face of it it does not purport to be suit under Section 31 of the Specific Relief Act, or a suit of that nature, apart from the fact, that if a suit were to be filed for correction of documents, might be decree, it could not be cognizable by the Revenue Court, as such suit does not fall in any of the entries in the third schedule appended to the Rajasthan Tenancy Act. In the present case the suit purports to be for declaration of joint Khatedari rights, and for declaration of the decree to be void, and ineffective, in view of the sale deed dt. 25.5.1974. It purports to be under Section 88 of the Rajasthan Tenancy Act. Then, a close reading of the plaint shows that it gives chronology of the total land measuring 126 Bigha, and then describes the respective shares of the parties. Then, pleads the the plaintiffs to have purchased from certain defendants by registered sale deed, and then pleads that by virtue of the land purchased by the plaintiff by sale only remaining land measuring 33 Bigha was required to be declared to fall in the share of late Jeeva Ram, but instead excess land to the above extent has been made to fall in 6 their share, and therefore, the plaintiff claims declaration to that effect. Then, in para-4 details of the purchase by the plaintiff has been given, and according to that, plaintiff claims to have purchased 44 Bigha 10 biswa and 1 biswanshi land, and put in possession on the basis of the purchase, and therefore, also have claimed declaration of Khatedari rights. Then in para-6 cause of action has been pleaded to be, the defendants asking the plaintiffs to leave the portion of land in accordance with decree, and to have threatened plaintiffs to leave the possession. Thus, the suit is not suit for correction of decree, but is a suit for declaration of Khatedari rights, on the basis of being purchaser under registered sale deed, and for cancellation of decree. Still other aspect of the matter is, that as noticed above, the decree was passed on 23.8.76, and the suit has been filed on 9.11.1984, i.e. after more than 8 years without pleading as to how the suit is within time. Yet another aspect of the matter is, that even if the defendants remained exparte the plaintiffs were required to lead evidence to prove the pleadings taken by them in the plaint, as against which from the order sheets it transpires that on 11.2.1987 suit was fixed for reply of defendant no. 10 on 5.3.1987 on which day it was adjourned. Then, on 26.3.1987 right to file written statement was closed, and the case was fixed for plaintiffs' evidence on 27.3.1987. Then, it 7 was again adjourned to 28.3.1987, and on 28.3.1987 the order sheet records that arguments were heard and the suit was decreed. Thus, obviously no evidence was led by the plaintiff. Even formal evidence by way of exparte affidavit was also not led by the plaintiff. Leaving apart order sheet, even after closely going through the original record we do not find any material on record which might be said to be evidence on the side of the plaintiff to prove the plaintiffs' case. It is not understood as to on what basis various papers available in the file bear endorsement of being exhibits. Thus, to say the least the plaintiff has not led any evidence whatever. The net out come of the aforesaid discussion is, firstly that the suit is not suit for correction of any alleged mistake, rather suit is for declaration of Khatedari rights, on the ground of the plaintiff having purchased the land by registered sale deed, which admittedly was executed during pendency of the suit No. 12 from the defendants therein, with the result that the plaintiffs simply stand in the shoes of their predecessors in interest, and admittedly decree dt. 23.8.1976 having become final and the suit by the plaintiff being simply successor of the defendants in earlier suit cannot be said to be maintainable. Then, there are additional reasons also as discussed above. Thus, taken from any stand point the learned Single Judge has rightly found the suit to be not maintainable. 8 It is a different story that all this long drawn litigation, unfortunately relates to a very small fraction of land measuring around 1 ½ Bigha as the plaintiffs claim to have purchased, and to the extent of 1 ½ Bigha more than what had been allotted to their predecessors being seller. In our view, in such circumstances, the judgment of the learned Single Judge does not require any interference in our appellate jurisdiction. The appeal is, therefore, dismissed. Parties shall bear their own costs of this appeal. Record of the learned trial court be returned. ( GOVIND MATHUR ),J. ( N P GUPTA ),J. /Sushil/