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2006 DIGILAW 289 (HP)

ROSHANI DEVI v. DOLMA DEVI

2006-09-12

DEEPAK GUPTA

body2006
JUDGEMENT Deepak Gupta J.:- Smt. Roshani Devi (Appellant herein) is the widow of jagat Ram, son of Khazana Ram. Her husband died "when her father-in-law Khazans Ram was alive Khazana Ram was the owner of the suit land. Smt. Roshani Devi being the widowed daughter-in-law of Khazana Ram filed a civil suit No.266/92 on 7.9.1991 in forma pauperis. She prayed for grant of maintenance allowance of Rs.500/- p.m. She also prayed for a decree of declaration to the effect that being the daughter-in-law she is entitled to maintain herself from the estate of her father-in-law. It was also prayed that Khazana Ram be restrained by a decree of permanent prohibitory injunction from alienating the suit property in any manner, which may affect her right of maintenance. Along with the suit, an application for interim relief was also filed and the Sub Judge 1st Class, Hamirpur was pleased to grant an ad interim injunction restraining Khazana Ram from alienating the suit land till further orders. The said ex parte ad interim injunction was confirmed on 22.10.1991. Khazana Ram filed an appeal against the said order before the learned District Judge, Hamirpur. The learned Distinct Judge disposed of the appeal of Khazana Ram by holding that Khazana Ram could not dispose of the disputed property to any person. 2. During the pendency of the earlier case, Man Chand who is the son-in-law of Khazana Ram, filed a suit being Civil Suit No. 219 of 1991 on 29.11.1991, claiming that he is the owner in possession of the suit land, which is also the subject matter of the present suit and that he had perfected his title to the suit property by way of adverse possession. Khazana Ram admitted the claim of Man Chand and the suit of Man Chand was decreed on 26.12.1991. Thereafter the appellant filed civil suit No. 261/92(73/98) on 6.11.1992 out of which the present proceedings arise. In this suit she claimed that the decree obtained by Man Chand against Khazana Ram was a collusive decree to defeat her right of maintenance and to nullify the orders of the court passed in her favour. This suit was contested by Khazana Ram and Man Chand. During the pendency of this suit Khazana Ram expired on 24.7.1993. In this suit she claimed that the decree obtained by Man Chand against Khazana Ram was a collusive decree to defeat her right of maintenance and to nullify the orders of the court passed in her favour. This suit was contested by Khazana Ram and Man Chand. During the pendency of this suit Khazana Ram expired on 24.7.1993. After the death of Khazana Ram, two of his daughters Harbansi Devi and Naratu Devi were brought on record as his legal heirs.The plaintiff amended the suit and claimed that after the death of Khazana Ram she was entitled to 1/3rd share in the suit property. Man Chand in reply took the defence that Khazana Ram had bequeathed his property by a Will in favour of the sons of Man Chand i.e. Rakesh Kumar and Raj Kumar, who were necessary parties to the suit. It would be pertinent to mention that these sons of Man Chand are not the grand sons of Khazana Ram since they were not born from the womb of the daughter of Khazana Ram. Man Chand was earlier married to Sarla daughter Khazana Ram who died during the lifetime of Khazana Ram, Man Chand thereafter married Dolma Devi and it was out of this wedlock that Rakesh Kumar and Raj Kumar were born. The trial court on the pleadings of the parties framed a number of issues. For the purpose of the present appeal it would only be pertinent to refer to two issues i.e. Issue No.7 and Issue No.15, which are to the following effects: Issue No.7. Whether the suit is bad for non-joinder and mis-joinder of the necessary parties ? OPD Issue No.15 Whether lalte Sh. Khazana Ram executed a valid Will in favour of Sh.Rakesh Kumar etc. as alleged. If so, its effect ? OPO 3. An applications was filed by Man Chand for impleading Rakesh Kumar and Raj Kumar the alleged beneficiaries of the Will as defendants in the suit. This application was contested by the plaintiff and the "trial court rejected the application. Aggrieved against the order passed by the trial court Man Chand filed C.R.No. 298 of 2001 in this court, which was decided by K.C. Sood, J. on 15.3.2002 . This application was contested by the plaintiff and the "trial court rejected the application. Aggrieved against the order passed by the trial court Man Chand filed C.R.No. 298 of 2001 in this court, which was decided by K.C. Sood, J. on 15.3.2002 . With regard to the impleadment of Rakesh Kumar and Raj Kumar he held as follows: ......"Regarding impleadment of Rakesh Kumar and Raj Kumar, it is noticed, they are nether necessary nor proper parties to the suit." 4. Thereafter Man Chand also expired on 20.8.2002.After the death of Man Chand his legal representatives i.e. widow Dolma sons Rakesh Kumar and Raj Kumar (beneficiaries under the Will) and his daughters Rajesh Kumari alias Sureshna, Rekha Devi alias Babli and Asha Rani alias Dimple were brought on record as his legal representatives. During the course of proceedings before the trial court on 16.12.2002 the defendants moved an application in the court that they do not press Issue No. 15 qua the Will dated 21.8.1991 alleged to have been executed by Khazana Ram in their favour. Ground given in the application was that since Rakesh Kumar and Raj Kumar were not impleaded as parties to the suit by the plaintiff and the other legal heirs wee also not impleaded as parties in the suit when the suit was filed hence the applicants defendants who are legal representatives of Man Chand do not press issue No. 15. It was also stated that they had filed a separate suit to establish their rights under the Will. 5. The trial court after considering the entire evidence came to the conclusion that the earlier decree passed in favour of Man Chand, declaring him to be owner of the suit property by way of adverse possession was a collusive decree. The trial court also held that since Rakesh Kumar and Raj Kumar had not pressed Issue No. 15 the Will was not proved and therefore the plaintiff Roshani Devi was held to be owner of 1/3rd share of the suit land and decree of possession of the land was passed in her favour. The trial court also recorded that Issue No.7 was not pressed before it. The heirs of Man Chand, including Rakesh Kumar and Raj Kumar filed an appeal before the learned District Judge, Hamirpur. This appeal has been decided by the impugned order dated 7.9.2005. The trial court also recorded that Issue No.7 was not pressed before it. The heirs of Man Chand, including Rakesh Kumar and Raj Kumar filed an appeal before the learned District Judge, Hamirpur. This appeal has been decided by the impugned order dated 7.9.2005. The learned lower appellate court held that Rakesh Kumar and Raj Kumar were necessary parties to the suit. The learned lower appellate court has discussed the order of the learned trial court rejecting the application fled by Man Chand for impleading Rakesh Kumar and Raj Kumar as parties to the suit. Though it has been noticed that CR No. 298 of 2001 against the said order dated 22.9.2001 was dismissed by this court, the lower appellate court has not cared to consider the findings rendered in the said Civil Revision and has proceeded to decide the matter as if it was sitting in appeal over the orders passed in the civil revision by this court. The learned lower appellate court of noticed in para No. 16 of the judgment that counsel for the present appellants had argued that the defendants had not pressed Issue No. 15 before the lower court This submission of the counsel has teen rejected by the lower appellate court on the ground that the heirs of Man Chand in their application while stating that they do not press issue no. 15 had also stated that they had not been made parties at the initial stage and had also filed a separate suit to establish these right The lower appellate court held that the trial court did not take into consideration the fact that the appellants had filed a suit against Smt. Roshani Devi and it was in these circumstances that the said defendants did not press Issue No. 15. The teamed lower appellate court came to the conclusion that Rakesh Kumar and Raj Kumar were necessary parties to the suit and ordered them to be added as defendants under Order 1 Rule 10(2) CPC and set aside the judgment of the trial court and remanded the case for decision to the trial court. Against this order of remand the appellants are in appeal before this court. 6.I have heard Mr. K.S. Banyal, learned counsel for the appellants and Mr. R.K. Gautam learned senior counsel appearing on behalf of the respondents. According to Mr. Against this order of remand the appellants are in appeal before this court. 6.I have heard Mr. K.S. Banyal, learned counsel for the appellants and Mr. R.K. Gautam learned senior counsel appearing on behalf of the respondents. According to Mr. Banyal, the learned lower appellate court has gravely erred in holding that Rakesh Kumar and Raj Kumar were necessary parties. He submits that once this court had held in the civil revision that they were not necessary parties, it was not within the jurisdiction of the lower appellate court to have held otherwise. He further submits that in view of the fact that issues no.7 and 15 were not pressed by the heirs of Man Chand the learned lower appellate court was not justified in impleading them as parties and remanding the case. He lastly submitted that the wholesale remand of the case is totally unjustified. On the other hand, Mr. R.K. Gautam learned senior counsel appearing for the respondents has submitted that Rakesh Kumar and Raj Kumar were necessary parties to the suit and therefore the order of the learned lower appellate court was justified. Infact Mr. R.K.Gautam submits that this Court should take resort to Order 41 Rule 33 CPC and dismiss the suit of the plaintiff for non joinder of parties. 7. I have given my careful consideration to the arguments raised by both the counsel and I have also taken into consideration the various judgments cited by them. At the very outset, I am constrained to observe that in view of the orders passed by K.C. Sood, J. CR.No.298 of 2001 the learned lower appellate court was not justified in reopening the question whether Rakesh Kumar and Raj Kumar were necessary parties to the suit. This court had clearly held that Rakesh Kumar and Raj Kumar are neither necessary nor proper parties to the suit. The lower appellate court could not have sat in judgment over the order passed by this Court. I need not say more. 8. However, in view of the detailed arguments raised before me, I have considered this question again. From the facts, which have been given in detail above, it is apparent that Man Chand and Khazana Ram were in cahoots with each other. They were trying their level best to defeat the rights of Smt. Roshani Devi who was the widow of the pre deceased son of Khazana Ram. From the facts, which have been given in detail above, it is apparent that Man Chand and Khazana Ram were in cahoots with each other. They were trying their level best to defeat the rights of Smt. Roshani Devi who was the widow of the pre deceased son of Khazana Ram. Therefore, a collusive decree was obtained by Man Chand to defeat the order of maintenance passed in favour of Smt. Roshani Devi. After Khazana Ram died his legal representatives were brought on record. Even assuming that Rakesh Kumar and Raj Kumar were also the legal heirs the estate of Khazana Ram was duly represented before the trial court. Man Chand, father of Rakesh Kumar and Raj Kumar, was contesting the suit and had specifically raised a plea that Khazana Ram had bequeathed his property in favour of Rakesh Kumar and Raj Kumar by means of a Will. Both sides led evidence to prove/disprove the Will. Smt. Roshani Devi had examined one Laxmi Dutt (PW-6) who was the Registrar at the relevant time who stated that though Will dated 21.8.1991 had been presented before him by Khazana Ram along with the marginal witnesses, because the executant could not properly answer the questions regarding the contents of the Will and did not understand the facts properly and he was old and infirm, this witness had found that Khazana Ram was not in sound disposing mind and therefore rejected the registration of the Will. On the other hand, the defendants led evidence to prove the will and produced on record the order passed by the appellate authority i.e. Registrar, Hamirpur allowing the appeal of Khazana Ram, who set aside the order of the Sub Registrar and ordered that the Will be registered. The Will was, however, never registered. 9. Another important factor, which must be noticed is that not only did the defendants examine a number of witnesses to prove the Will but Rakesh Kumar himself appeared as DW-5 to prove the Will. After Man Chand died all his legal heirs, including Rakesh Kumar and Raj Kumar were brought on record. In case they felt that they should be permitted to lead more evidence, they could have easily filed an appropriate application before the trial court. After Man Chand died all his legal heirs, including Rakesh Kumar and Raj Kumar were brought on record. In case they felt that they should be permitted to lead more evidence, they could have easily filed an appropriate application before the trial court. Instead of doing so they filed an application stating that they do not press issue No. 15 on the grounds that they were not made parties to the suit and that had filed a separate suit to establish the right. This was a risk they knowingly took. They should have realized hat if they do not press Issue No. 15 the issue is bound to be decided against them. Further, it is important to note that trial court had noted that the issue No.7 quoted above was also not pressed before it. Despite this issue having to been pressed before the learned trial court the appellate court proceeded to hear the appellants on the question whether the suit was bad for no joinder of parties without there being any material on record to show that the trial court had wrongly recorded that Issue No.7 had not been pressed before it. It is well settled law that the observation made in any judicial order by judicial officer are accepted to be correct. The higher courts do not readily draw an inference that any statement recorded in a judgment of a lower court is incorrect. I find that no material was placed before the learned appellate court to show that his findings that Issues No.7 to 13 and 15 had not been pressed before him was a wrong statement. The learned lower appellate court in my opinion has gravely erred in permitting the appellants to agitate these issues once they had not pressed these issues before the trial court. 10. Under Order 1 Rule 13 of the CPC a party is deemed to have waived an objection regarding mis joinder or non joinder of parties if such an objection is not taken before framing of issues. It is obvious that such an objection can be waived and in the present case the defendants specifically waived this objection by not pressing issue No.7. The respondent-defendants voluntarily did not press Issues No.7 and 15 and therefore it was not open for them to challenge the judgment of the trial court on either of the grounds, which were covered by these issues. The respondent-defendants voluntarily did not press Issues No.7 and 15 and therefore it was not open for them to challenge the judgment of the trial court on either of the grounds, which were covered by these issues. 11. The manner in which the defendants have conducted themselves is also not above board. They have successfully for more than 15 years denied the right of maintenance to the plaintiff. As observed above the suit was being contested by Man Chand on all grounds and infact one of the beneficiaries under the Will had appeared in the witness box. They were well aware of the proceedings and were contesting the case on all grounds and had led entire evidence. It is obvious that they just wanted to delay the inevitable and therefore filed the application that they do not press issue No. 15. Issue No.7 was also not pressed by them at the stage or arguments. It is apparent that the learned lower appellate court has patently erred in permitting the defendants to raise these issues before it. 12. To be fair to both counsel I must note that a number of judgments were cited before me. However, all the judgments were with regard to the scope of Order 41 Rules 23 to 25, the scope of Order 41 Rule 33 CPC and also who are necessary parties to the proceedings. Since I have decided the suit on different grounds I need not refer to the judgments in detail. 13.In view of the above discussion, in opinion, the order of the learned lower appellate court setting aside the judgment of the trial court is totally illegal and is accordingly set-aside with costs assessed at Rs.5000/-. The matter is remanded to the lower appellate court who shall restore the appeal to its original number and decide the same on the material on record. Keeping in view the chequered history of the litigation the lower appellate court is directed to decide the appeal by 31st December, 2006. The parties through their counsel ^re directed to appear before the lower appellate court on 20th October, 2006. The Registry is directed to ensure that the records of both the courts below are sent to the learned lower appellate court so as to reach there well before the date fixed. 14. The parties through their counsel ^re directed to appear before the lower appellate court on 20th October, 2006. The Registry is directed to ensure that the records of both the courts below are sent to the learned lower appellate court so as to reach there well before the date fixed. 14. Before parting with this case, I must observe that the learned lower appellate court has dealt with the case in a manner not expected from a senior judicial officer. It not only allowed the appellants to argue issues which were not pressed by them before the trial court but virtually sat in judgment over the order passed by this court in CR No.298 of 2001. Judicial discipline required that the courts lower in hierarchy obey and comply with the orders passed by a higher court. The decision of a higher court may be right or wrong but once it attains finality the lower court cannot reopen the questions decided and virtually set aside the order of the higher court. It also nefeds to be observed that though the learned lower appellate court only passed an order of remand in which no decree is to be drawn, but in the present case a decree sheet has also been drawn up.