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2000 DIGILAW 209 (PNJ)

Duli Chand v. Nath (Deceased) Through Angoori

2000-02-21

R.L.ANAND

body2000
Judgment R.L.Anand, J. 1. This is a Regular Second Appeal and has been directed against the judgment and decree dated 13.10.1997 passed by Addl. District Judge. Faridabad, who dismissed the appeal of the appellant defendant by confirming the judgment and decree of the trial Court, which granted a decree for permanent injunction restraining the defendant from interfering into the possession of the plaintiff over the suit land. 2. Nathi deceased filed a suit for permanent injunction against the present appellant alleging that he was owner in possession of Gair Mumkin Gait, fully described in the head-note of the plaint and that the defendants have no right, title or interest in the same. The defendants are influential persons and they want to take possession of the site in question forcibly. Hence the suit. 3. The suit was contested by the defendants and many pleas were taken by them including the one that the suit property was purchased by them for a consideration of Rs. 800/- about 25 years ago from the previous owners of the suit land. However, no sale deed was executed in view of the terms settled by the villagers. It was also alleged that they have become the owners by way of adverse possession. 4. The learned trial Court framed the following issues on the pleadings of the parties:- 1. Whether the plaintiff is owner in possession of the land in dispute? OPP 2. Whether the plaintiffs has no locus standi to file the present suit ? OPD 3. Whether the suit is not maintainable ? OPD 4. Whether the suit is bad on account of non-joinder of necessary parties ? OPD 5. Whether the plaintiff has no cause of action to file the present suit ? OPD 6. Whether the suit is time barred ? OPD 7. Whether the plaintiff is estopped by his act and conduct to file the present suit? OPD 8. Relief. 5. The parties led evidence and ultimately the suit of the plaintiff was decreed and the plea of the defendants was rejected regarding ownership because the alleged sale was of more then Rs. 100/- i.e. Rs. 800/- but there was no registered sale-deed. The defendants also could not prove their adverse possession before the trial Court. The defendants filed the first appeal which was dismissed vide judgment and decree dated 13.10.1997. Hence the present regular second appeal. 6. I have heard Mr. 100/- i.e. Rs. 800/- but there was no registered sale-deed. The defendants also could not prove their adverse possession before the trial Court. The defendants filed the first appeal which was dismissed vide judgment and decree dated 13.10.1997. Hence the present regular second appeal. 6. I have heard Mr. Chander Singh, Advocate on behalf of the appellant. Mr. Rajesh Chaudhary, Advocate on behalf of the contesting respondent and with their assistance have gone through the record of the case. 7. It is settled principle of law that concurrent findings of fact cannot be disturbed, when those are based on proper appreciation of evidence, in second appeal only a substantial question of law can be agitated. The learned counsel for the appellant, however, submitted that the suit of Nathi had abated and this aspect of the case has not rightly been taken note of by the Courts below. The counsel submitted" that Nathi died somewhere in the year 1991. He relies upon a mutation report to suggest that after the death of Nathi, there were three legal representatives, namely Smt. Anguri, widow of the deceased, and his two sons, namely Durga Parshad and Ranbir. The counsel further submitted that prior to the amendment brought by the High Court in order 22 Rule 3 C.P.C. the application for impleading the L.Rs could be instituted within 90 days from the date of death of the deceased. The amendment was introduced by the High Court on 21.2.1992 and it has to be interpreted prospectively. The cause of action had survived to the L.Rs. of Nathi. The application was moved by Smt. Anguri alone on 12.2.1992. The said application was hopelessly barred by limitation and in these circumstances the suit of the plaintiff stood abated automatically with the expiry of 90 days as the court has never condoned the delay. 8. The argument of the learned counsel for the appellant may look alluring at the first instance, but on deeper scrutiny it is devoid of any merit. The application was moved by Smt. Anguri on 12.2.1992 alleging that Nathi has died during the pendency of suit in August, 1991 and she was his legal heir and she may be allowed to be substituted as plaintiff in place of Nathi deceased. The notice of the application was given to the defendants. Reply was filed and arguments were heard. The application was moved by Smt. Anguri on 12.2.1992 alleging that Nathi has died during the pendency of suit in August, 1991 and she was his legal heir and she may be allowed to be substituted as plaintiff in place of Nathi deceased. The notice of the application was given to the defendants. Reply was filed and arguments were heard. Vide order dated 2.4.1992 the Court allowed the application in the presence of the learned counsel for the parties and the operative order is as follows.:- "Arguments in L.Rs application heard. Other counsel has no objection if application of L.Rs. of deceased plaintiff is hereby allowed. Hence now to come on 13.4.1992 for filing of amended title of plaint." The above order would show that the appellant-defendant did not object when Smt. Anguri was substituted in place of Nathi deceased. In this view of the matter, it is now not open for the appellant to say that the suit of the plaintiff had abated when the appellant himself gave the consent in favour of Smt. Anguri Devi to be substituted in place of Nathi. 9 Under the old procedure, the Court has the power by showing sufficient cause to condone the delay. With the passing of the order dated 2.4.1992, if there was any delay, it will be deemed to have been condoned and in these circumstances it cannot be said that the suit of the plaintiff Nathi had abated. There is another additional reason for the rejection of the contention raised by the learned counsel for the appellant. It was a suit for injunction and it furnished a successive cause of action to the plaintiff. Admittedly, Smt. Anguri is one of the L.Rs. of Nathi and after the death of Nathi, the cause of action survived to her as well as to other L.Rs. of Nathi. In such a situation Smt. Anguri was a co-sharer along with other L.Rs. namely Durga Parshad and Ranbir. One of the co-sharers for the benefit of other co-sharers could also file a suit for injunction. I have already stated above on merits that concurrent finding of fact cannot be disturbed in regular second appeal Resultantly, I do not see any merit in this appeal and the same is hereby dismissed