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1995 DIGILAW 4 (MP)

Shyam Lal v. Shiv Dayal

1995-01-02

SHACHEENDRA DWIVEDI

body1995
ORDER 1. This petition is preferred under Article 227 of the Constitution of India for a writ/direction for quashing the order as contained in Annexure P/1, passed by the learned Additional District Judge, Pichchore, district, Shivpuri. 2. The facts may be summarized. The petitioner was the plaintiff in the court-below. The suit was filed against the respondent and one Phulla for declaration and permanent injunction with the prayer that the petitioner-plaintiff be declared as Bhumiswami and the person in possession of the disputed agricultural land. It was also prayed that the registered sale-deed dated 31.3.1981 executed by defendant No.2 Phulla in favour of the respondent be declared ineffective as against the petitioner, having been executed by a person without any right. A decree of permanent injunction was also prayed. 3. During the pendency of the suit, defendant No.2 died. An application was moved by the petitioner-plaintiff on 9.11.1994 under Order 22 Rule 4 and section 151 of the Code of Civil Procedure submitting that he came to know the factum of the death of respondent No. 2-Phulla, when the application was filed by the defendants in the Court on 17.8.1984 and, therefore, he sought to bring the heirs/L.Rs. of the deceased on record. The respondent filed the reply to this application submitting that defendant No. 2-Phulla had died on 8.1.1984 and the fact was to the knowledge of the petitioner but he did not prefer the application within time for bringing the L.Rs. of the deceased defendant on record. Therefore, it was contended that the suit had abated. The learned trial Court found that defendant Phulla had died on 8.1.1984 and the application by the plaintiff-petitioner under order 22 Rule 4 of the C.P.C. was filed on 9.11.1984. As such, it was barred by limitation and therefore, the suit had abated to the extent of relief claimed against defendant No.2. 4. As against the order of the trial Court, the respondent preferred a revision and the learned revisional Court on the ground that in the circumstances, no effective decree could be passed in the suit since the case of the two defendants (the respondent and deceased-defendant No. 2-Phulla) was inseparable, found that the suit had abated not only against the deceased-defendant but also against the respondent. The said order is contained in Annexure P/1 and is sought to be quashed by the petitioner. 5. The said order is contained in Annexure P/1 and is sought to be quashed by the petitioner. 5. It is contended by the petitioner that the view taken by the learned revisional Court is unjust, improper and illegal. It is submitted that the suit could be held to have abated also against the respondent, on the death of defendant No. 2 Phulla. 6. I have considered the rival contentions of both the parties. The petitioner had filed the suit for declaration of his title on the disputed land in the status of Bhumiswami and not for the cancellation of the sale-deed. It was only a consequence to follow the declaration. The respondent claims to have acquired the ownership's right in the disputed property on its purchase from Phulla, the deceased-defendant No.2. 7. The question would therefore be whether the deceased/defendant could file the suit, excluding the deceased-defendant. The deceased, after the transfer of land to the respondent had no interest in the suit property. He was not stated to be in possession of the property after the stated sale. In the suit there was no prayer made for the recovery of possession. The plaintiff/petitioner had only prayed declaration of his title as Bhumiswami and the decree of permanent injunction as some trouble was being created by deceased defendant also in the plaintiff's possession of disputed property, though he had no interest after the alienation of property. 8. The respondent in such a suit is required to prove that he has the the in the disputed land and vice versa, meaning thereby the plaintiff to succeed would be required to prove that he is the Bhumiswami and has the title in the disputed property. If the plaintiff so succeeds, the respondent will have no title in the property. The petitioner and the respondent have, therefore, to prove their title independently, even in the absence of Phulla, the deceased-defendant No.2. The abatement of the suit in respect to the claim against deceased-defendant No.2 Phulla would not result in the abatement of the whole suit of the petitioner. As against the respondent an affective decree can still be passed in the absence of the deceased-defendant No. 2-Phulla and/or his heirs/L.Rs. The authority of Gajrajsingh v. Amritlal and others (1976 MPWN 286) is of no avail to the respondent as it is distinguishable on the facts. 9. The other authority of Anant Ch. As against the respondent an affective decree can still be passed in the absence of the deceased-defendant No. 2-Phulla and/or his heirs/L.Rs. The authority of Gajrajsingh v. Amritlal and others (1976 MPWN 286) is of no avail to the respondent as it is distinguishable on the facts. 9. The other authority of Anant Ch. Sahu and others v. Dhruba Ch. Padhan (Dead) and Dhedia Padhan and others (AIR 1990 Orissa 33), though cited by the respondent and relied upon by the learned revisional Court in Annexure P/1 does not help the case of the respondent. On the contrary the authority supports the petitioner. The petitioner has placed reliance on Mohd. Arif v. Allah Rabbul Alamin and others ( AIR 1982 SC 948 (1) and Pannulal v. Pardesi ( 1985 MPWN 570 ). The authorities support my view that the suit shall not abate in its entirety. 10. On the foregoing discussions, the petition succeeds. The order Annexure P/1 is quashed and the order of the learned trial Court dated 30.7.1985 as contained in Annexure P/7 is restored. In the facts and circumstances, there shall be no order as to the costs.