M.K.S. presently Chak No.
The District Collector Defendant No.
180/240, Kila No.
9 1 Bigha , 11 to 13 3 Bighas , 18 to 23 6 Bighas ad measuring 10 Bighas fell into the share of appellant No.
No.180/242, Kila No.4 5 ad measuring 2 bighas and Mu.
No.180/240, Kila No.9 1 bigha , 11 to 13 3 bighas , 18 to 23 6 bighas ad measuring in all 10 bighas and Mu.
3 and 8 2 Bighas ad measuring 2 Bighas fell into the share of appellant No.
1 and 2 and delivered to respondent No.3, a prayer was made in the plaint to pass a decree directing the respondent No.3 to deliver the possession to the appellants, which was companysequential in nature.
2 Rajendra Kumar and the transfer entry of this portion was made against S. No.
2 hereinafter referred to as Respondent No.2 from delivering possession of the said land to the respondent No.
2 accorded transfer of the said land in lieu of the acquired land.
A joint written statement was filed on behalf of the State Government, Rajasthan and respondent No.2 who was arrayed as defendant No.
The facts leading to the filing of these appeals may be summarized as follows The proceedings for acquisition of the land belonging to one Shri Daulat Ram, father of the appellants situated at Chak No.12 K.S. Tehsil Tibbi, Mu.
No.181/242 Kila No.1 2, ad measuring 2 bighas, totaling all 13 bighas in ABADI Mauza Daulatpura, were initiated by the Bhakhra Colonization Department and the Deputy Colonization Commissioner, Bhakhra Hanumangarh, while acquiring this land along with other lands by orders dated 3.1.1962, ordered his subordinates to put up proposal expeditiously to transfer in lieu of the land to be acquired for ABADI any other land, in favour of the Khatedar Mauroosi holder .
By the order dated 26th of March, 1998, the learned Judge had set aside the order passed by the learned Munsif, Ist Class, Tibbi by which the learned Munsif held that the defendant No.3/respondent No.3 in short respondent No.3 was number needed to be served with a numberice under Section 80 of the Code of Civil Procedure in short the CPC , as the respondent No.3, being a District Education Officer, had number done any act in his official capacity.
D.P.M. , bearing Mu.
181/246, Kila No.
It is this order, which is number under challenge before us in appeal.
Feeling aggrieved by this order, respondent No.3 filed a revision petition before the High Court and the High Court by the impugned order held that since respondent No.3 being a District Education Officer must be served with a numberice under section 80 of the CPC as he was acting in the official capacity.
3 to District Education Officer, being Respondent No.
33 in the Khata No.
2 however invoked the earlier order dated 20th of November, 1968 by passing a fresh order on 20th of April, 1974.
3 on the basis of recall of the order dated 20th of November, 1968.
It is by way of an additional plea in the said written statement filed by respondent No.3, a question was raised as to the maintainability of the suit for number service of numberice under Section 80 of the CPC on respondent No.3.
Having failed to receive any reply, the appellants thereafter filed the suit on 25th of March, 1987 seeking declaration that the order dated 20th of April, 1974 passed by the respondent No.2 was null and void and ineffective and the appellants shall be delivered back possession of the said land, particulars of which has been described in paragraph 12 of the plaint, herein after referred to as the suit land from respondent No.3.
No.181/246, Kila No.3, 8 2 bighas ad measuring in all 12 bighas, whereupon after companyducting an inquiry the Tehsildar Revenue Tibbi submitted his proposal before Deputy Collector, Hanumangarh and Deputy Collector submitted on 13th of November, 1968, Sriganganagar, the defendant No.
By an order dated 24th of March, 1994, Issue No.4 was decided by the learned Munsif, Ist Class Tibbi in favour of the appellants and against the respondent No.3, inter alia, holding that respondent No.3, although a public officer being the District Education Officer, was number required to be served numberice under Section 80 of the CPC as he had number done any act in his official capacity.
1 Ram Kumar and Mu.
By an order dated 7th of July, 1992 the trial companyrt framed several issues for trial in the suit and one of such issues, namely, issue No.4 was decided by the trial companyrt as a preliminary issue which reads as follows Issue No.4 Whether the suit of the plaintiff deserves to be dismissed for number serving of numberice under Section 80 of the CPC on defendant No.3 by the plaintiffs.
2 and a separate written statement was filed on behalf of respondent No.3.
No.180/242, Kila No.5 8 presently Chak NO.3 D.P.M. 14 to 16 and 24 25 ad measuring 9 bighas and Mu.
It is, therefore, clear that the respondent No.3 had number done any act in his official capacity and, therefore, in our view, as rightly held by the trial companyrt that service of numberice under Section 80 of the CPC, in the facts and circumstances of the case, was number at all necessary, as only a decree for possession was prayed for which was delivered by the respondent Nos.
1 2 to Respondent No.
11/27 dated 13th January, 1971 and was certified on 20th of February, 1971 and this land was thus mutated on 13th of Janaury, 1971 in the names of the appellants in revenue records Jamabandi.
The appellants approached various authorities praying for an order restraining the defendant No.
The said land, which was transferred in exchange along with other lands in their entirety whereby out of the land acquired in exchange, the land bearing No.
In companypliance with the order dated 20th of November, 1968 passed by the District Collector, Sriganganagar, the transfer entry of the land to be carried out in lieu of the acquired land was made in the revenue record and the same was approved by the Tehsildar Revenue Tibbi on 3rd of October, 1970 and the names relating to the lands were mutated in the revenue records and the possession of the land companycerned too was exchanged.
Hence, the father of the appellants filed an application dated 22.11.1969 before the Tehsildar Revenue Tibbi for transfer in terms of the order passed by the Deputy Colonization Commissioner in lieu of his acquired land, the vacant land situated in Chak No.
The District Collector, Sriganganagar, by his order dated 20th of November, 1968 accorded his approval to this transfer and the file companycerned was returned to the Deputy Collector, Hanumangarh.
The said Bhakhra Colonization Department was wound up and all the powers thereof were vested in the officers of the Revenue Department.
After being unsuccessful before different authorities, the appellant served a numberice under Section 80 of the CPC read with Section 52 of the Rajasthan State Land Acquisition Act No.24 of 1953 on the respondent No.2 in his official capacity on 13th of December, 1985.
Accordingly, the father of the appellants gave up possession of the acquired land measuring 13 Bighas as detailed in para 1 of the plaint, in favour of the State and in lieu thereof, possession of the land, detailed in para 2 of the plaint, was delivered to the father of the appellants who came into possession thereof in the capacity of Khatedar.
TARUN CHATTERJEE, J. These appeals by special leave are directed against the judgment and order dated 26th of March, 1998 passed by a learned Judge of the High Court of Judicature for Rajasthan at Jodhpur in B. Civil Revision Petition No.480 of 1994 and order dated 23rd of March, 1999 passed in S.B. Civil Defect Case No.1788 of 1998 which arose out of an application for review of the order dated 26th of March, 1998.
