[2025:RJ-JP:7594] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Writ Petition No. 8980/2010 1. Bodan aged 51 years son of Nonda, 2. Sunda, aged 49 years, son of Nonda since deceased, through his legal heirs:- 2/1. Sarti Devi, widow aged 60 years 2/2 Ramswaroop son aged 40 years 2/3 Pooran son aged 38 years 2/4 Phoolchand aged 36 years, son 2/5 Singaram son aged 32 years 2/6 Smt. Bado, daughter aged 45 years 2/7 Teeja, daughter aged 42 years 2/8 Santo daughter aged 34 yers All are R/o Village Rampur Tehsil Bansoor District Alwar. ----Petitioners Versus 1. Board Of Revenue For Rajasthan, Ajmer. 2. State Of Rajasthan Through Tehsildar, Bansoor Tehsil Bansoor District Alwar. 3. Nanda Son Of Jeevan By Caste Mali, Village Rampur, Tehsil Bansoor District Alwar. ----Respondents For Petitioner(s) : Mr. Jai Raj Tantia For Respondent(s) : Mr. Akshat Khandelwal for Mr. Himanshu Sogani HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL Judgment / Order 20/02/2025 This writ petition is directed against the judgment dated 14.06.2010 passed by the Board of Revenue Rajasthan, Ajmer (for brevity, ‘Board of Revenue’) in appeal no.10604/2008 whereby, while allowing an application filed by the respondent no.3/appellant/defendant (for brevity, ‘appellant’) under Order 22 Rules 4 and 9 read with Section 151 CPC, abatement was set aside and appeal was restored to its original number taking on record the legal representatives of deceased respondent no.1 Shri Nonda (for brevity, ‘plaintiff’) therein. [2025:RJ-JP:7594] (2 of 4) [CW-8980/2010] The relevant facts in brief are that the plaintiff filed a suit for declaration and permanent injunction against the appellant which came to be dismissed by the Court of Assistant Collector, Behror vide judgment and decree dated 22.01.1977. The appeal preferred thereagainst by the plaintiff came to be allowed by the Revenue Appellate Authority, Alwar vide its judgment and decree dated 12.09.1977. The appeal preferred thereagainst by the appellant came to be allowed by the Board of Revenue vide judgment and decree dated 22.10.1984. The writ petition no.1074/1985 preferred thereagainst by the legal representatives of the plaintiff (for brevity, ‘petitioners’) was allowed by this Court vide judgment dated 04.02.2000 holding that since, the plaintiff has expired during pendency of the appeal before the Board of Revenue and his legal representatives were not brought on record, decree against him could not have been passed. Therefore, the judgment and decree dated 22.10.1984 were set aside restoring the judgment and decree dated 12.09.1977 passed by the Revenue Appellate Authority. The D.B. Civil Special Appeal (Writ) No.820/2000 preferred thereagainst as also the review petition no.77/2003 both filed by the appellant were dismissed by a Division Bench of this Court vide its orders dated 13.09.2002 and dated 05.09.2008 respectively. Referring to the judgment of the learned Single Judge dated 04.02.2000 passed in S.B. Civil Writ Petition No.1074/1985 and the orders dated 13.09.2002 and dated 05.09.2008 passed by a Division Bench of this Court dismissing the special appeal and review petition respectively preferred by the appellant, learned counsel for the petitioners submits that since, the judgment and [2025:RJ-JP:7594] (3 of 4) [CW-8980/2010] decree dated 22.10.1984 passed by the Board of Revenue were set aside restoring the judgment and decree of the Revenue Appellate Authority, the Board of Revenue erred, vide judgment impugned dated 14.06.2010, in allowing the application filed by the appellant under Order 22 Rules 4 and 9 read with Section 151 CPC. He, therefore, prays that the writ petition be allowed and the judgment impugned dated 14.06.2010 be quashed and set aside. Per contra, learned counsel for the appellant, supporting the findings recorded by the Board of Revenue, prays for dismissal of the writ petition. Heard. Considered. While allowing the application filed by the appellant under Order 22 Rules 4 and 9 read with Section 151 CPC, the Board of Revenue has assigned cogent reasons for setting aside the abatement and taking the legal representatives of deceased plaintiff-Nonda on record. Even otherwise, this finding is not subject matter of challenge in the writ petition. The only contention is that once this Court restored the judgment and decree passed by the Revenue Appellate Authority vide its judgment dated 04.02.2000, it was not open for the Board of Revenue to have entertained the application filed by the appellant. The submission is misconceived and devoid of merit. Although, it is trite law that no decree; either in favour or against the dead person is sustainable and deserves to be quashed and set aside. However, the proceedings can be revived on a proper application filed for setting aside the abatement and restoring the litigation as was done in the instant case. Merely because, while allowing the writ petition preferred by the petitioners against the judgment and [2025:RJ-JP:7594] (4 of 4) [CW-8980/2010] decree of the Board of Revenue dated 22.10.1984 on account of it having been passed against the dead person, the learned Single Judge of this Court has restored the judgment and decree dated 12.09.1977 passed by the Revenue Appellate Authority and the D.B. Special Appeal preferred thereagainst as also D.B. Review Petition were dismissed, right of the appellant to seek the abatement set aside and to get the appeal restored did not stand foreclosed. Rather, while dismissing the review petition preferred by the appellant, the Division Bench has held, vide its order dated 05.09.2008, as under:- “We feel that the appeal has abated. The appellant, if advised, may take recourse for setting aside the abatement.” Thereafter, on an application filed by the appellant, the Board of Revenue has set aside the abatement, taken the legal representatives of deceased plaintiff on record and restored the second appeal vide judgment impugned dated 14.06.2010 which, in view of the aforesaid discussion, is not found to be suffering from any illegality or perversity so as to warrant interference of this Court under its writ jurisdiction. Resultantly, this writ petition is dismissed being devoid of merit. Pending application(s), if any, also stands disposed of accordingly. (MAHENDAR KUMAR GOYAL),J DIKSHA /33