Govind Mathur, J.To challenge the judgment dated 18.4.2012, passed by learned Single Bench, this appeal is before us.

2. Facts of the case in brief arc as follows :-

A suit as per provisions of Section 88 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as the Act of 1955) was preferred before the Court of Assistant Collector, Sirohi by one Shri Ugra Bharti to have a decree for getting mutation of certain agriculture land in his name. As per plaintiff Ugra Bharti (now represented by his legal representatives) the land in question was purchased by him through a registered sale deed dated 16.9.1976 and thereafter he was in possession thereof. Canceling the sale aforesaid, the same land was again sold to defendant Ravta Bharti under a sale deed dated 11.4.1994 and on basis of that mutation entries in revenue records were made in his favour.

3. The suit aforesaid came to be decreed by judgment dated 7.2.2003. A challenge was given to the judgment and decree dated 7.2.2003 by defendant Ravta Bharti by way of filing an appeal before the Revenue Appellate Authority, Sirohi as per provisions of Section 223 of the Act of 1955. The appeal also came to be dismissed vide judgment dated 16.4.2006. After dismissal of the first appeal, a second appeal was filed as per Section 224 of the Act of 1955 before the Board of Revenue Rajasthan by present appellant petitioner Mahant Narayan Bharti. It was contended on behalf of the appellant petitioner that defendant appellant Shri Ravta Bharti died during pendency of the appeal and this fact was not brought into knowledge of the First Appellate Court, hence, the Court dismissed the appeal on merits. The dismissal of appeal on merits was nullity being a decree against a dead person. Beside this ground, the second appeal was also contested on merits. Learned Board of Revenue by its judgment dated 4.5.2011 dismissed the appeal by holding that -

(1) Appellant Mahant Narayan Bharti did not prefer any application to bring himself on record as legal representative of Ravta Bharti and Counsel of Ravta Bharti contested first appeal on merits before the First Appellate Court, therefore, no interference therein is required on a technical ground; and

(2) The land in question was sold to Ugra Bharti under a sale deed dated 16.9.1976, as such, the second sale under the sale deed dated 11.4.1994 is void and on basis of that no right could have been claimed by Ravta Bharti.

4. Being aggrieved by the judgment dated 4.5.2011 Mahant Narayan Bharti preferred a petition for writ that came to be dismissed by judgment impugned. Learned Single Bench while dismissing the writ petition held as under:-

"In my opinion, the Board of Revenue has not committed any wrong while dismissing the appeal filed by Mahant Narayan Bharti claiming himself as disciple of late Ravta Bharti. Upon bare perusal of the entire writ petition, it is revealed that the fact of execution of Will in favour of the petitioner is not disclosed and, upon query made by the Court, the petitioner has filed the copy of "Will" along with additional affidavit but, again, it is nowhere disclosed in the additional affidavit when executor of the "Will" late Ravta Bharti died.

In this view of the matter, I am of the opinion that the petitioner who was not even party before the S.D.O., Sirohi or before the Revenue Appellate Authority, Sirohi cannot be permitted to challenge the order passed by the S.D.O., Sirohi and Revenue Appellate Authority, Sirohi because no application to implead him as party was filed on the basis of the so called "Will" which is said to have been executed by late Ravta Bharti in his favour. Therefore, no case is made out for interference."

5. In appeal, learned Counsel appearing on behalf of the appellant states that learned Single Bench erred while observing that no disclosure is made about the date of death of Ravta Bharti, who executed "Will" in favour of the present appellant. Learned Counsel further submits that learned Single Bench erroneously dismissed the writ petition without examining the fact that the Board of Revenue utterly failed to appreciate that dismissal of the appeal which amounts to grant of decree to the plaintiff respondents against a dead person is nothing but a nullity. On basis of such a decree no execution could have taken place.

6. We have examined the entire record.

7. It is not in dispute that the suit preferred by respondent plaintiff Shri Ugra Bharti was decreed and appeal was preferred by defendant Ravta Bharti before the Revenue Appellate Authority as provided under Section 223 of the Act off 1955. It is also not in dispute that during pendency of first appeal Shri Ravta Bharti died, but this fact was never brought in the knowledge of the First Appellate Court and further that the appeal was argued by Counsel for the defendant appellant on merits and after dismissal of the appeal second appeal was preferred by the present appellant petitioner claiming himself to be the legal representative of Ravta Bharti.

8. Applying the provisions of Order 22, Rule 3 and Order 22, Rule 9 Code of Civil Procedure, we are of considered opinion that second appeal preferred by the appellant petitioner was absolutely misconceived; As per Order 22, Rule 3 Code of Civil Procedure, where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to the sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.

9. In the instant matter, appellant petitioner Mahant Narayan Bharti admittedly did not prefer any application to substitute him as the appellant after death of Shri Ravta Bharti. This fact is not of much importance in view of the fact that as per the appellant petitioner he came to know about pendency of the appeal only when respondent plaintiff Ugra Bharti initiated the process of execution and immediately thereafter he filed the second appeal. As a matter of fact no occasion was there to file second appeal in the instant matter in view of the fact that as per Order 22, Rule 3 (2) Code of Civil Procedure the first appeal preferred under Section 223 of the Act of 1955 stood abated on non filing of application under sub-rule (1) of Rule 3 Order 22 within the time limited by law. Sub-rule (2) of Rule 3 Order 22 provides that where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned. The abatement of the suit/appeal is automatic and, therefore, the first appeal preferred by deceased Ravta Bharti stood abated on non filing of the application as per sub-rule (1) within the time limited by law. The subsequent examination of merits by First Appellate Court on an appeal already abated is absolutely non consequential. The appellant petitioner had a remedy under sub-rule (2) of Rule 9 Order 22 Code of Civil Procedure to apply for setting aside the abatement by establishing that he was prevented by sufficient cause from continuing the suit. No such step was taken and directly a second appeal was preferred. The filing of the second appeal was not only legally erroneous but also highly prejudicial to the rights of the respondent plaintiff as in the event of filing an application as per sub-rule (2) of Rule 9 Order 22 Code of Civil Procedure, it would have been obligatory upon the applicant, the present appellant petitioner, to establish his claim as a legal representative of deceased appellant Ravta Bharti and further to satisfy the Court that he was prevented by a sufficient cause from continuing the proceedings.

10. In view of whatever stated above, we are of considered opinion that dismissal of first appeal preferred by Ravta Bharti as per Section 223 of the Act of 1955 is to be treated as abatement of appeal as per provisions of Order 22, Rule 3 (2) Code of Civil Procedure. The appeal preferred by the appellant petitioner before the Board of Revenue as per provisions of Section 224 of the Rajasthan Tenancy Act, 1955 giving challenge to an appeal abated be treated as not maintainable.

11. So far as the judgment passed by learned Single Bench is concerned, that does not require any interference in view of the fact that the writ petition was dismissed on the count that the appellant failed to establish his right to be claimed as legal representative of Ravta Bharti due to non submission of adequate facts and further that no application was preferred by him before the appellate authority to bring him on record as legal representative of Ravta Bharti.

12. The appeal is accordingly dismissed. However, the expression of "dismissal" shall not be treated as an impediment, if, the appellant petitioner avails the recourse to get the abatement of first appeal set aside in accordance with law.