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2004 DIGILAW 850 (PNJ)

Ramji Lal v. Babu Lal

2004-08-06

VINEY MITTAL

body2004
JUDGMENT Viney Mittal, J. - The plaintiffs having concurrently remained unsuccessful before the learned two courts below have approached this Court through the present regular second appeal. 2. A suit for declaration was filed by the plaintiffs claiming that decree dated November 27, 1980 suffered by defendant Nos. 2 and 3 in favour of defendant No. 1 was illegal, bad, ineffective and not binding upon the rights of the plaintiffs. It was claimed that the aforesaid decree had been suffered by defendant Nos. 2 and 3 with regard to ancestral property and, therefore, the alienation of the aforesaid ancestral property being without consideration and without any legal necessity was against the customary law. 3. The detailed facts, as pleaded by the parties, need not be noticed in detail in this judgment inasmuch as the aforesaid facts stand duly noticed by the learned two courts below. Suffice it to note that the claim made by the plaintiffs was contested by the defendants by filing a joint written statement. The validity of the aforesaid decree was defended by the defendants. It was specifically claimed by the defendants that the property covered under the aforesaid decree was not ancestral property and, as such, defendant Nos. 2 and 3 had absolutely unrestricted rights to suffer the decree and in any case the plaintiffs have no locus standi to file a suit challenging the said decree. 4. The learned trial Court on the basis of the evidence available on the record found that the plaintiffs have completely failed to prove that the property in question was ancestral in the hands of Khub Ram, predecessor-in- interest of defendant Nos. 1 to 3. On that basis, it was held that the plaintiffs had no locus standi to challenge the aforesaid decree dated November 27, 1980. Additionally, it was held that the said decree had not been passed on the basis of any fraud and also did not require any registration. On the basis of the aforesaid findings, the suit filed by the plaintiffs was dismissed. 5. The plaintiffs took up the matter in appeal. The learned first appellate Court reappraised the entire evidence. On the basis of such reappraisal, the learned first appellate Court also came to the similar conclusions as had been arrived by the learned trial Court. Consequently, the appeal filed by the plaintiffs was also dismissed. 6. 5. The plaintiffs took up the matter in appeal. The learned first appellate Court reappraised the entire evidence. On the basis of such reappraisal, the learned first appellate Court also came to the similar conclusions as had been arrived by the learned trial Court. Consequently, the appeal filed by the plaintiffs was also dismissed. 6. The plaintiffs have now approached this Court through the present regular second appeal. 7. I have heard Shri Ashok Gupta, the learned counsel appearing for the appellants and Shri H.S. Gill, the learned senior counsel appearing for the respondents and with their assistance have also gone through the record of the case. 8. At the outset, it may be relevant to notice that appellant No. 2, Umrao son of Khub Ram had expired on October 1, 1989. No application was filed by the appellants to bring on record his legal representatives within the period of limitation. Subsequently, an application being CM No. 509-C of 2000 was filed by the appellants on January 21, 2000 under Order 22 Rule 3 of the Code of Civil Procedure (hereinafter referred to as "the Code"). The prayer made in the aforesaid application is to bring on record the legal representatives of deceased-appellant, Umrao. It has also been stated in the aforesaid application that Bal Ram son of Umrao had also expired on November 28, 1993. Reply to the aforesaid application had been filed on behalf of the respondents. It has been averred that since no application had been filed within the period of limitation and the legal representatives of appellant No. 2 were not brought on record within a period of 90 days, therefore, regular second appeal stood abated. Vide order dated August 17, 2001, the aforesaid civil miscellaneous application was ordered to be heard at the stage of final hearing of the appeal. 9. From the perusal of the averments in the application, it is apparent that no averment has been made therein with regard to the fact as to why the legal representative of the deceased-appellant, Umrao were not brought on the record within the period of limitation i.e. 90 days. Once the legal representatives of the deceased-appellant were not brought on the record within the aforesaid statutory period of limitation, then the appeal stood abated. The appellants had a right to get the aforesaid abatement set aside within a further period of 60 days. Once the legal representatives of the deceased-appellant were not brought on the record within the aforesaid statutory period of limitation, then the appeal stood abated. The appellants had a right to get the aforesaid abatement set aside within a further period of 60 days. No such application had ever been filed by the appellants to set aside the aforesaid abatement. A specific objection was taken in this regard by the respondents by filing a reply on January 31, 2000. Even thereafter no steps were taken by appellant Nos. 1 and 3 in this regard. Accordingly, it is clear that the appeal filed by the appellants stands abated on the death of Umrao, appellant No. 2 on October 1, 1989. 10. Faced with the aforesaid difficulty, the learned counsel for the appellants states that the provisions of Rule 3 of Order 22 of the Code stand amended by this Court and it has been provided that even in default of non- filing of the application to bring on record the legal representatives of the appellant, the appeal would not abate. I am afraid, the aforesaid argument of the learned counsel for the appellants is without any basis. The aforesaid amendment has been made by this Court in Rule 3 of Order 22 of the Code vide an amendment made on February 21, 1992. However, the aforesaid amendment is not retrospective in nature. The same is to operate only prospectively. Accordingly, on the death of Umrao, appellant No. 2 on October 1, 1989 and on the failure of the remaining appellants to bring on record the legal representatives of the said deceased within the statutory period, the appeal stood abated. The aforesaid abatement could have been got set aside within a further period of 60 days by showing sufficient cause for the failure. No such application for setting aside the abatement has been filed. In fact, no averment has been made in the present application showing any sufficient cause for the delay, although a specific objection in this regard was taken by the respondents. It may also be relevant to notice that on the death of aforesaid appellant No. 2, Umrao, the appeal stood abated in toto and not qua the aforesaid appellant alone, inasmuch as, the challenge in the present suit for declaration has been made jointly by the three plaintiffs namely, Ramji Lal, Umrao and Sher Singh. It may also be relevant to notice that on the death of aforesaid appellant No. 2, Umrao, the appeal stood abated in toto and not qua the aforesaid appellant alone, inasmuch as, the challenge in the present suit for declaration has been made jointly by the three plaintiffs namely, Ramji Lal, Umrao and Sher Singh. The said challenge is to the decree dated November 27, 1980. When the appeal stood abated qua appellant No. 2 Umrao, then the remaining two appellants could not be heard to make any challenge to the said decree. The acceptance of the aforesaid challenge would actually result in passing of inconsistent decree. Thus, the present regular second appeal stands abated and is liable to be dismissed on that account alone. Accordingly, C.M. No. 509-C of 2000 filed by the appellants is rejected. 11. Although, there is no requirement to consider the controversy on merit since it has been held that the present regular second appeal stands abated but since the learned counsel for the parties have addressed arguments on merit as well, therefore, it would be appropriate to deal with the merit of the controversy also. 12. Shri Ashok Gupta, the learned counsel for the appellants has challenged the findings recorded by the learned Courts below with regard to the nature of the property. It has been contended that in fact the property covered by the aforesaid decree dated November 27, 1980 is ancestral property and, as such, the said decree could not operate against the interest of the plaintiffs. It is conceded by the learned counsel for the appellants that there is no evidence on the record to prove the aforesaid fact. However, the learned counsel relies upon a purported report made by the Halqa Patwari when he submitted the same to Tehsildar, Rewari. The aforesaid report is claimed to have been made by Halqa Patwari on some application made by the plaintiffs after the decision of this appeal by the learned first appellate Court. The aforesaid report has been extracted in the grounds of regular second appeal. 13. I am afraid the aforesaid report, even if the same has been prepared by the Halqa Patwari, cannot be taken into consideration by this Court while adjudicating the controversy in question. The said report, extracted in the grounds of appeal, cannot be treated to be an additional evidence. 13. I am afraid the aforesaid report, even if the same has been prepared by the Halqa Patwari, cannot be taken into consideration by this Court while adjudicating the controversy in question. The said report, extracted in the grounds of appeal, cannot be treated to be an additional evidence. The said report has never been formally proved. No prayer has been made by filing an application under Order 41 Rule 21 of the Code to prove the said report. Accordingly, the aforesaid report cannot be taken to be even relevant for the decision of the controversy in question. 14. If the aforesaid report is ruled out of consideration, then it has been fairly conceded by the learned counsel for the appellants, that there is no other evidence available on the record to show the nature of property. Thus in the absence of any evidence, the property in question cannot be presumed to be ancestral. Once the property in question is held is held to be not ancestral, then obviously the plaintiffs have absolutely no right to challenge the decree dated 27, 1980 in any manner inasmuch as, defendant Nos. 2 and 3 would be presumed to be well within their rights to suffer the aforesaid decree in favour of defendant No. 1. No other point has been urged. No question of law, muchless any substantial question of law, arises in the present appeal. In view of the aforesaid discussion, the present appeal being devoid of any merit is dismissed. No costs. Appeal dismissed.