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2001 DIGILAW 223 (HP)

HOTAM RAM v. BEER SINGH

2001-09-04

M.R.VERMA

body2001
JUDGMENT M.R.Verma,J.:- The appellants have preferred the present appeal against the judgment and decree dated 20.4.1996 passed by the learned Additional District Judge, Kullu in Civil Appeal No.56 of 1994 dismissing their appeal against the order dated 19.10.1994 passed by the learned Senior Sub Judge, Lahul and Spiti, exercising the powers of sub Judge 1st Class, Kullu. 2. One Bhaini Devi instituted a suit against Bir Singh, respondent No. 1 herein and one Jalam, predecessor in interest of respondents 2 to 6 who have been impleaded as respondents in his place. In the said suit, the plaintiff had prayed for a decree for declaration that the plaintiff is owner in possession of land comprising khasra No.706 measuring 12 biswas, khata khatauni Nos. 176/336 situate in Phati Mahol, Kothi Khokan Teh. and District, Kullu with, consequential, relief of injunction. It was averred in the plaint that said Jalam had sold that suit land to her for consideration in the sum of Rs.650/- vide registered sale deed dated 9.6.1965 and the possession was also delivered to her on the same date. However, the concerned revenue officer rejected the mutation on the basis of said sale illegally and in her absence. It is also averred in the plaint that said Bhaini Dev had made improvements on the suit land after the purchase after spending a sum of Rs.4000/-. However respondent Bir Singh got a sale deed of the suit land executed in his favour from said Jalam whereas such a sale deed could not have been executed. After the execution of the sale deed, respondent No. 1 and said Jalam started threatening said Bhaini Devi to take over the forcible possession of the suit land. Hence the suit. 3. The suit was contested by respondent No. l and the predecessor in interest of the remaining respondents. Respondent No. l in his written statement, raised the preliminary objections that the plaintiff was out of possession, therefore, the suit was not competent in the form in which it has been laid, that the suit was time barred and that respondent No. l was in adverse possession of the suit land. Respondent No. l in his written statement, raised the preliminary objections that the plaintiff was out of possession, therefore, the suit was not competent in the form in which it has been laid, that the suit was time barred and that respondent No. l was in adverse possession of the suit land. On merits, it was claimed that the suit land is a nautor and could not have been sold without the permission of the State whereas respondent No. l is in possession thereof as a purchaser without notice and the suit land never remained under the cultivation of the plaintiff and, thus, the claims of the plaintiff was denied. The deceased Jalam who is now represented by respondents 2 to 6, in his written statement, raised the preliminary objection that the suit in the present form was not maintainable. On merits, it was claimed that being nautor, he was not competent to transfer the suit land nor the plaintiff came to possess the suit land. It is further averred that the suit land has been sold by him to respondent No. l for consideration in the sum of Rs.4000/- and now respondent No. l is in possession thereof. He has denied ownership, possession and interference over the suit land; It has, however, been claimed that the plaintiff had fradulently obtained a gift deed from deceased defendat Jalam Singh. Thus, Jalam also denied the claim of the plaintiff as a whole. 4. The plaintiff filed replication wherein the grounds of defence as taken in the written statement were denied and the claim as made out in the plaint was reaffirmed. 5. On the pleadings of the parties, the trial Court framed the following issues: 1. Whether the plaintiff is in possession of the suit land and the suit is competent in the present form? OPP 2. Whether the defendant No.2 made a valid sale in favour of the plaintiff on 9.5.65? OPP. 3. What is the effect of sale of the suit land dated 13.2.1978 by he defendant No.2 in favour of defendant No. l ? OPD. 4. Whether the defendant No. l has become owner of the suit land by adverse possession?OPD-1. 5. Relief. 5. Parties were called upon by the trial Court to lead evidence and finally the suit was decreed on 29.3.1982. OPD. 4. Whether the defendant No. l has become owner of the suit land by adverse possession?OPD-1. 5. Relief. 5. Parties were called upon by the trial Court to lead evidence and finally the suit was decreed on 29.3.1982. Being aggrieved, respondent No. 1 preferred an appeal against the judgment and decree passed by the trial Court in the court of the learned District Judge, Mandi, who reversed the judgment and decree passed by the trial Court and dismissed the suit. The said judgment and decree of the learned District Judge, Mandi were assailed by the original plaintiff Bhaini Devi by filing RSA No.44 of 1985 in this Court. Bhaini Devi, however, died during the pendency of the said appeal and the present appellants were substituted as appellants in her place. During the course of the final hearing of the said appeal in the High Court, it was found that Jalam (original defendant No.2 in the suit) had died during the pendency of the suit before the trial Court in July/August 1981. However, despite the factum of death of said Jalam Singh having been brought to the notice of the trial Court, the legal representatives of said Jalam Singh were not brought on record. This court, on the basis of the aforesaid undisputed facts, set aside all the orders passed subsequent to the death of Jalam Singh, remanded the suit to the trial Court with direction to decide the same afresh in accordance with law. This Court further directed the parties to take steps as they like with respect to the substitution of legal representatives of deceased Jalam Singh as also with respect of the case on merits. After remand, the trial Court directed the appellants to take steps to bring on record the legal representatives of said Jalam Singh. The requisite application was filed. The application was contested by the respondents. After hearing the parties, the trial Court refused to allow the application and dismissed the suit as having abated. This order of dismissal was assailed by the appellant by was of an appeal. The said appeal was dismissed by the learned Additional District Judge, Kullu by the impugned judgment and decree. Hence the present appeal. 6. I have heard the learned counsel for the parties and have also gone through the records. 7. This appeal has been admitted for hearing on the following substantial questions of law: "2. The said appeal was dismissed by the learned Additional District Judge, Kullu by the impugned judgment and decree. Hence the present appeal. 6. I have heard the learned counsel for the parties and have also gone through the records. 7. This appeal has been admitted for hearing on the following substantial questions of law: "2. Whether under the facts and circumstances the trial Court was justified in rejecting the application of the plaintiff appellant in respect to right to sue survived as against defendant No. l on the death of defendant No.2?" 8. The aforesaid substantial question of law though not happily worded, means whether the right to sue survives against defendant/respondent No. 1 alone and, therefore, the suit could not be dismissed as having abated as a whole? 9. In view of the provisions of sub rule (3) rule 4, Order 22 of the Code of Civil Procedure, if an application to bring on record the legal representatives of a defendant who dies during the pendency of the suit is not made within the prescribed period, the suit shall abate against the deceased defendant. If the deceased was the sole defendant, the suit shall automatically abate as a whole. In case there are other surviving defendants, the Court has to consider and decide whether the right to sue survives against the surviving defendants alone and the suit can proceed against them or it has abated as a whole. Some of the tests to determine whether suit has abated as a whole or can proceed against the surviving defendants are (i) whether the deceased defendant was a necessary part in the suit or the suit could be ^awfully filed and maintained without impleading him as a defendant, (ii) whether in the absence of the legal representatives of the deceased defendant, an effective and executable decree can be passed and, (iii) whether in the event of proceeding with such suit, two conflicting decrees are likely to be passed. These tests are not cumulative and even if one of them is satisfied, the suit shall abate as a whole. 10. These tests are not cumulative and even if one of them is satisfied, the suit shall abate as a whole. 10. As already stated, in the suit on hand, the relief claimed by the original plaintiff which is now being perused by the present appellants/plaintiffs as her legal representatives, is that she was owner in possession of the suit land by virtue of its purchase from deceased defendant Jalam Singh who subsequently sold it to respondent defendant No. l illegally and she had further claimed the relief of permanent injunction restraining the defendants (including deceased defendant Jalam Singh) from interfering with her possession over the suit land which in the revenue records is shown as owned by said deceased defendant Jalam Singh. As per the written statement filed by deceased defendant Jalam Singh, he could not sell the suit land because it was granted to him as nautor (A piece of land which has been granted to a person as nautor cannot be transferred by the grantee for a certain period under the rules regulating grant of nautor). He has further claimed that the deceased plaintiff had obtained a gift deed from him by fraudulet means and without payment of any consideration. Thus, the sale by deceased Jalam Singh, on the basis of which defendant No.2 is claiming to be the owner, is in denial of the alleged ownership of the plaintiff. In case the suit for declaration is decreed, respondent - defendant No. l will have a right to recover the consideration of the sale between respondent No. 1 and deceased defendant Jalam Singh which will adversely affect the right of the deceased or his legal heirs to retain the sale consideration. Thus, Jalam Singh and after his death his legal representatives, have an interest involved in the suit. Secondly, as per the averments made in the plaint, the alleged threats to interfere with the possession of the plaintiff over the suit land had been extended by respondent - defendant No. l as well as deceased Jalam Singh and there is a specific prayer for grant of relief of permanent injunction restraining both the said defendants from interfering with the possession of the plaintiff over the suit land. Thus, from the frame of the suit wherein a specific relief has been claimed against , deceased defendant Jalam Singh, he was a necessary party to the suit. Thus, from the frame of the suit wherein a specific relief has been claimed against , deceased defendant Jalam Singh, he was a necessary party to the suit. Therefore, in his absence and after his death in the absence of his legal representatives, the questions involved in the suit can not be properly and finally adjudicated nor an effective decree of injunction could have been passed. Thus, for want of bringing on record the legal representatives of deceased Jalam Singh within the period of limitation, the suit abated not only against said Jalam Singh but it abated as a whole. Therefore, the concurrent findings of the two Courts below holding that the suit has abated as a whole cannot be said to be illegal. 11. As a result, there is no merit and sbstance m the present appeal which is accordingly dismissed. However, in the facts and circumstances of the case, there is no order s to costs.