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2010 DIGILAW 186 (JK)

Asgar Ali v. Ali Mohd.

2010-04-08

GH.HASNAIN MASSODI

body2010
1. The present Civil Second Appeal has been admitted on the following substantial questions of law:- 1. Whether with the death of the defendant No. 7 (Ghulam Raza) the suit had abated in toto, therefore, continuation of proceeding were without jurisdiction. 2. Whether cause of action to maintain suit had vanished in view of the decision of the Shariee Board (Madrasa Asna Ashariya District Kargil), therefore, judgments passed by the trial Court as well as appellate Court are without jurisdiction. 3. Whether C2A can be treated as revision. 2. The appeal arises on the following grounds: The respondents on 10th November 1986 instituted a civil suit in the Court of Sub Judge Kargil, claiming therein that the respondents (plaintiffs and Proforma defendants in the main suit) were exclusive users of the water oozing/flowing from Yakus spring at village Kharboo Tehsil and District Leh ("suit spring" for short) and that the respondents by continuous, exclusive and uninterrupted user of the suit spring and water flowing therefrom had acquired exclusive ownership rights over the suit spring. The respondents pleaded that the appellants without having any right whatsoever on the spring and suit spring water were illegally asserting their rights over the suit spring and spring water and making attempts to divert the spring water to irrigate their agriculture land. The respondents insisted that the respondents and their forefathers from times immemorial have been in possession of the spring and have been making exclusive use of the water to irrigate their agriculture lands. The respondents based their right over the Yakus spring and water flowing there from on prescription, that according to the respondents had ripened to ownerships. The appellants/contesting defendants in their written statements filed on 30.3.1987, disputed the respondents right to make exclusive use of the suit spring and the spring water and insisted that the appellants were also making use of suit spring water from the times immemorial. However, the appellants did not deny the right of the respondents to make use of the spring and spring water. 3. The Trial Court on 30.10.2001, on perusal of the pleadings settled the following issues:- 1. Whether the present suit is not maintainable? OP DI-8. 2. Whether proper court fees has not been affixed with the plaint, if so, what is its effect on the suit? PPD 1-8. 3. 3. The Trial Court on 30.10.2001, on perusal of the pleadings settled the following issues:- 1. Whether the present suit is not maintainable? OP DI-8. 2. Whether proper court fees has not been affixed with the plaint, if so, what is its effect on the suit? PPD 1-8. 3. Whether plaintiffs have added new proforma defendants and dropped previous without permission of the court, if so what is its effect on the suit? OPA 1-8. 4. Whether the plaintiffs and proforma defendants are exclusively using water of Yakus spring for irrigating their lands since time immemorial and have thus acquired proprietary rights over the water of the said spring Yakus?. OPP. 5. Whether there exists no spring named Yakus and plaintiffs have got inserted the name of the Yakus in the revenue records?. OP D1-8. 6. Whether plaintiffs have not filed this suit with in the period specified by the court while granting permission to withdraw the original suit if so, what is its effect on the suit? OPD 1-8. 7. Whether the plaintiffs have no cause of action to file the present suit? OPD 1-8. 8. Relief O.P. Parties. 4. The Trial court after recording evidence adduced by the parties held the respondents (plaintiffs and Proforma defendants in the suit) to have been exclusively using the water flowing from suit spring for irrigating their lands since times immemorial and to have acquired proprietary rights over the water of the suit spring. The Trial court also found the appellants not to have any right over suit spring and spring water in question. The Trial Court proceeded to decree the suit and pass a declaratory decree declaring the respondents to be owners and in exclusive use of Yakus spring and spring water flowing therefrom and also granted a permanent injunction decree, permanently restraining the appellants from interfering with the respondents rights over the suit spring and spring water. 5. The appellants assailed the judgment and decree dated 17.4.2003, of the Trial Court before the Principal District judge Kargil. 5. The appellants assailed the judgment and decree dated 17.4.2003, of the Trial Court before the Principal District judge Kargil. The grounds urged before 1st Appellate Court to question the judgment and decree of the Trial Court, were that the parties having resolved to get the dispute settled through the arbitration of Shariee Board (Madrasa Asna Ashariya District Kargil), as was reflected in the minutes of proceedings of the Trial Court, it was not open to the Trial Court to proceed with the trial of the suit much less pass the impugned judgment and decree. It was pleaded that Shariee Board (Madrasa Asna Ashariya District Kargil), had not only entered upon the reference but had handed over its verdict and the Trial Court as such was striped of any jurisdiction to proceed with the suit. The judgment and decree of the Trial Court were said to have been passed without jurisdiction and liable to be set aside. The appellants also voiced their grievance regarding the amendment made by the respondents in the plaint whereby the name of spring in question was allowed to be changed from "Dasus" to "Yakus". The appellants impugned the judgment and decree on the grounds that these were based on mis-appreciation of evidence and thus were liable to be set aside. 6. The 1st Appellate Court did not find any merit in the grounds urged before it. Learned 1st. Appellate Court recorded its agreement with the findings returned by the Trial Court on the issues settled in the suit. 7. The contention of the appellants that the Trial Court after the parties entered into an agreement to get the dispute resolved through arbitration, had lost its jurisdiction to proceed with the suit, was held to be without any merit. The 1st Appellate Court after recording its agreement with the conclusions drawn by the Trial Court as also mode and manner in which the conclusions were arrived at, held the appeal to be without any merit and dismissed the appeal. 8. The judgment and decree of the 1st. Appellate Court as also the judgment and decree of the Trial Court are assailed in the present Civil 2nd Appeal on a number of grounds. To question the concurrent judgments of the Trial Court and the 1st. Appellate Court, it is urged that with death of Sh. 8. The judgment and decree of the 1st. Appellate Court as also the judgment and decree of the Trial Court are assailed in the present Civil 2nd Appeal on a number of grounds. To question the concurrent judgments of the Trial Court and the 1st. Appellate Court, it is urged that with death of Sh. Ghulam Raza one of the Proforma defendants in the suit, the suit abated as a whole and not only to the extent of deceased defendants as was held by the Trial Court vide order dated 1.9.2001. The appellants claim to have been using the water flowing from the suit spring and to have perfected their title over the spring and spring water by prescription. The Trial Court order dated 1.9.2001, is said to be against the law and liable to be set aside. The appellants plead that with the death of Sh. Ghulam Raza, Proforma defendant No. 11 in the suit the cause of action did not survive against the appellants as cause of action against the appellants/ defendants and deceased Proforma defendant was joint and indivisible. The appellants have detailed substantial questions of law in paras I - V of the memorandum of appeal. The Court as already mentioned, vide its order dated 3.7.2008 after going through the memo of appeal and relevant record settled the substantial questions of law reproduced above. 9. I have gone through the memo of appeal as also the record received from the Trial Court. 10. I have heard Counsel for the parties at length and have given my thoughtful consideration to the arguments advanced by the Learned Counsel. The substantial questions of law reproduced in first para of this order may now be taken up for consideration. 11. The respondents /plaintiffs in the suit sought a declaratory decree declaring the respondents plaintiffs and respondents/ pro forma defendants, as exclusive owners of suit spring and the waters oozing/flowing from the said spring and also a permanent injunction decree restraining the contesting defendants from interfering with the subject matter of the suit. The deceased pro forma defendant Sh. Ghulam Raza figured in the array of pro forma defendants for whom like other pro forma defendants, relief was sought in the plaint. The respondents /plaintiffs case before the Trial Court was that though the pro forma defendants including the deceased pro forma defendant Sh. The deceased pro forma defendant Sh. Ghulam Raza figured in the array of pro forma defendants for whom like other pro forma defendants, relief was sought in the plaint. The respondents /plaintiffs case before the Trial Court was that though the pro forma defendants including the deceased pro forma defendant Sh. Ghulam Raza had same interest and same cause of action, yet for one or other reason the pro forma defendants did not join the plaintiffs and the plaintiffs went alone to enforce their rights as also rights of pro forma defendants in respect of the suit spring but all the same joined Sh. Ghulam Raza and others as pro forma defendants. The respondents did not seek any relief against the deceased pro forma defendant or other respondents/ pro forma defendants but asked the Court to grant a decree in their favour as well as in favour of the pro forma defendants. Sh. Ghulam Raza pro forma defendant admittedly died on 10.10.1990 and his legal representatives were not brought on record within the period prescribed under law. Learned Trial Judge found the application dated 4.7.2000, to bring on record the legal representatives of the deceased pro forma defendant, time barred and held the suit to have abated to the extent of the deceased pro forma defendant. 12. In order to opine on the fall out of failure to bring on record legal representatives of deceased pro forma defendant on the suit. It is necessary to have a closer look on Order 22 of Civil Procedure Code. Order 22 Rule 1 lays down, that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. The Order 22 Rule 2 deals with the situation where one of several plaintiffs or defendants dies and right to sue survives to the surviving plaintiff /plaintiffs alone, or against the surviving defendant or defendants alone. In the said eventuality the suit shall proceed at the instance of surviving plaintiff/plaintiffs, or against the surviving defendant or defendants. In the event the right to sue does not survive to the surviving plaintiff/plaintiffs alone, Court is required to bring on record the legal representatives of the deceased plaintiff on an application made in this behalf. In the said eventuality the suit shall proceed at the instance of surviving plaintiff/plaintiffs, or against the surviving defendant or defendants. In the event the right to sue does not survive to the surviving plaintiff/plaintiffs alone, Court is required to bring on record the legal representatives of the deceased plaintiff on an application made in this behalf. In the event, such an application is not made within the time limited by law the suit is to be abate as for as deceased plaintiff is concerned. Similarly, in case of death of a defendant where the right to sue does not survive against the surviving defendant or defendants alone the legal representatives of a deceased defendant/s are to be brought on record on an application made in this behalf and in the event such application is not made within time limited by law, the suit is to abate against the deceased defendant/s. The attention in the present case is thus to go to the question whether the right to sue survived to surviving plaintiffs alone. If it is found that the right to sue on death of Sh. Ghulam Raza pro forma defendant did not survive to against the surviving plaintiffs surviving defendants alone but also to the legal representatives of the deceased pro forma defendant, the focus is to shift on the consequences of failure to make an application for bringing on record legal representatives of the deceased defendant, on the suit. It needs to be reiterated, that plaintiffs in the suit did not ask for any relief against the deceased pro forma defendant but prayed for a decree in their favour and also in favour of the deceased pro forma defendant and other pro forma defendants. The status of the deceased defendant like other pro forma defendants was that of plaintiff, who for some reason had not joined the plaintiffs in enforcing the right of the plaintiffs and pro forma defendants in respect of the water oozing /flowing from the suit spring. The right to sue thus did not survive to against the surviving plaintiffs and pro forma defendants alone, but also to the legal representatives of a deceased pro forma defendant. The next question that calls for an answer relates to exact consequence of admitted failure to file the application for bringing on record the legal representatives of a deceased pro forma defendant, on the suit. The next question that calls for an answer relates to exact consequence of admitted failure to file the application for bringing on record the legal representatives of a deceased pro forma defendant, on the suit. The Trial Court has taken the view that the suit has abated as against the deceased defendant and made an order on 1.9.2001, accordingly. The application for setting aside the aforementioned order i.e. abatement of suit as against the deceased pro forma defendants, has been disallowed by the Trial Court vide order dated 31.10.2001. The Trial Court was not impressed by the arguments that as the deceased pro forma defendant was not a necessary party in the suit his death did not entail abatement of the suit even against the deceased pro forma defendant. The appellants did not question either of the two orders i.e. order dated 1.9.2001 and order dated 31.10.2001, before any higher / Superior Court. The orders have thus assumed finality. The appellants did not raise any plea regarding abatement of whole suit in wake of death of Sh. Ghulam Raza - pro forma defendant before Ist. Appellate Court. The memorandum of appeal does not make even a whisper in this regard. The Ist. Appellate Court obviously did not deal with the issue. The question possibly cannot be, against the said backdrop, raked up in the Civil Second Appeal. This apart the ground as regards abatement of the whole suit on the death of Sh. Ghulam Raza pro forma defendant, is urged unmindful and regards less of the facts of the case. It would be appropriate to extract the relevant portion of the memo of Second Appeal touching this aspect of the case. "...... Allowed the suit to proceed against other defendants, ignoring the fact, that in the suit for declaration seeking title to water springs in a hilly area like Kargil, the cause of action is joint against all the defendants and ........ decision of the Court on abatement does not clothe the Court of Sub Judge Kargil i.e. Trial Court with jurisdiction to proceed the suit" 13. The ground is thus urged on the premises that the respondents had a cause of action against deceased defendant as also other defendants and such cause of action was joint against all the defendants including the deceased defendant. The ground is thus urged on the premises that the respondents had a cause of action against deceased defendant as also other defendants and such cause of action was joint against all the defendants including the deceased defendant. The appellants fail to appreciate that the respondents did not seek any relief against the deceased pro forma defendant nor was any cause of action pleaded against the deceased pro forma defendant. In the circumstances, the averment that a cause of action against all the defendants including the deceased pro forma defendant was joint and in the event of death of pro forma defendant the whole suit was abated, is devoid of any merit. 14. In Mangal Singh and others v. Smt. Ratnu and another AIR 1967 SC 1786 the appellants failed to make an application for impleadment of legal representatives of one of the respondents/defendants. The Supreme Court having regard to the nature of the dispute settled by the Lower Courts held that such failure did not result in abatement of the appeal as a whole. The court noticed that the deceased defendant had been treated as pro-forma defendant by the Ist. Appellate Court and thus the dispute was later confined to the parties other than the deceased defendant. It was held that even if the legal representatives of the deceased defendant were not brought on the record, the relief claimed in the suit could have been granted. In the circumstances the failure to implead / bring on record legal representatives of the deceased, was held not to result in abatement of the suit as a whole. 15. In Velappan Pillai v. Parappan Panikar and others AIR 1969 Madras 309, the deceased defendant whose legal representatives were not brought on record, did not dispute the right of the plaintiff urged in the suit. The court found that even if the deceased defendant had not been arrayed as a party to the suit, the defendant would have been in a position to obtain the relief claimed in the suit. The court observed: "........We do not speak of the existence of a right to sue against or the survival of the right when no relief is sought against a particular respondent. Rule 9 states that on abatement no fresh suit shall be brought on the same cause of action. The court observed: "........We do not speak of the existence of a right to sue against or the survival of the right when no relief is sought against a particular respondent. Rule 9 states that on abatement no fresh suit shall be brought on the same cause of action. Reading Rule 4 (1) with Rule 9 it is clear that there is no question of any abatement in the case of a purely pro forma respondent." 16. In Kanhaiyalal v. Rameshwar and others AIR 1983 S.C 503, the Supreme Court had again an occasion to comment on fallout of failure of a party to Civil Suit to implead / bring on record legal representatives of a pro-forma defendant. The Supreme Court held that failure to implead legal representatives of pro-forma respondent, against whom no relief is claimed, would not have the effect of abating the appeal. 17. The principal of law was reiterated in Mohammad Haroon and others v. Central Bank of India, AIR 1994 M.P 24. 18. In this case one of the defendants was set exparte and did not at any point of time appeared before the court or contested the suit. The deceased defendant had not even filed the statement. The court held that when the pro-forma respondent dies and no relief is claimed against him, in the absence of whom the appeal proceeds. Thus the appeal shall not abate due to failure to bring the legal representative of such party on record in time. 19. The court held that the appeal had not abated due to death of defendant/respondent. 20. The present case falls squarely within the purview of law laid down in the aforesaid authoritative judicial pronouncement. The contesting respondents/ plaintiffs having not claimed any relief against the deceased pro-forma defendant and the fact that suit could commenced and proceeded even in absence of the deceased pro-forma defendant and the contesting respondents/plaintiffs in a position to obtain the relief prayed in the suit, the death of pro forma defendant does not result in abatement of the suit. 21. So viewed the question No. 1 is answered in negative and the suit held not to have abated in whole because of death of pro forma defendant Gh. Raza. 22. It is argued by Ld. 21. So viewed the question No. 1 is answered in negative and the suit held not to have abated in whole because of death of pro forma defendant Gh. Raza. 22. It is argued by Ld. Counsel for the appellants that the parties having agreed during pendency of the suit, to get the matter settled through intervention of Shariee Board (Madrasa Asna Asharia District Kargil) and the Shariee Board having given its verdict, the trial ought to have decided the suit as settled between the parties. It is insisted that in terms of order 23, Rule 3 CPC the Trial Court was stripped of jurisdiction to proceed with the suit once the Shariee Board pronounced its verdict. The ground urged in the memo of appeal and the argument advanced, make it necessary to go through the minutes of proceedings before the Trial Court so as to see real import of prayer made by the parties, signifying their intention to get the matter, involved in the suit, settled through intervention of Shariee Board. It appears that on 18.11.1989 parties made an application through their attorney that the parties proposed to get the suit matter settled amicably and to arrive at a compromise the parties intend to approach the Shariee Board (Madrasa Asna Asharia District Kargil) and that the verdict given by the `Shariee Board would be acceptable to the parties. The Court did not pass any order on the application so made but adjourned the matter at the request of the parties to enable the parties to compromise the matter. The parties thereafter on 04.06.1990 presented before the Court, verdict of the Shariee Board called by the Trial Court to be in shape of compromise between the parties. The parties, however, made it clear that the compromise/ verdict shall not be acceptable to the parties in as much as the compromise did not identify /describe the suit property. The parties expressed their intention that as compromise/ verdict required clarification, the parties would approach Shri Shiekh Ahmad, who headed Shariee Board (Madrasa Asna Asharia District Kargil) requesting clarification. 23. The counsel for the parties on 13.11.1990 informed the court that as the matter between the parties was settled, the parties be provided an opportunity to submitted a formal compromise deed before the court. 24. 23. The counsel for the parties on 13.11.1990 informed the court that as the matter between the parties was settled, the parties be provided an opportunity to submitted a formal compromise deed before the court. 24. Haji Abdul Wahab one of the appellants/contesting defendants on 08.12.1990 made an application to the Trial Court stating therein that to take the compromise to its logical end the legal representatives of plaintiffs / defendants mentioned in the application, who had passed away during pendency of the suit, be summoned and asked to accept the compromise. 25. The appellants/contesting respondents /pro forma defendants on 23rd December 1991 informed the court that the dispute involved in the suit could not be settled and the court on receiving said information, decided to proceed with the suit and after recording evidence, passed the impugned judgment and decree. The order dated 23.12.1991 does not appear to have been questioned before any superior court. The appellants undeterred by and unmindful of the unsuccessful effort to settle the matter through negotiations, continued to participate in the proceedings and contest the suit. The matter was nonetheless agitated in the amended written statement filed by the appellants/contesting defendants. The Trial Court, however, opined that as the efforts made by the parties to compromise the matter, had not born any fruit, the suit was not be held to be maintainable only because the parties had expressed their intention to compromise the matter. The Ld. Trial Judge was of the opinion that the Trial court had not referred the matter to the Arbitration of Madrasa Asna Ashariya District Kargil, and merely because the parties initially signified their intention to get the matter settled through good offices of Madrasa Asna Ashariya District Kargil, an effort which did not succeed, the suit was not to be held as non maintainable and the Court held to lack jurisdiction to try the suit. Ld. Ist. Appellate Court was of similar opinion and repelled the argument advanced by the appellants/ contenting defendants that mere intention of the parties at some stage in the proceedings to compromise the matter, left the Court without jurisdiction to try the suit. 26. The minutes of the proceedings reveal that the parties to the suit at no point of time entered into a compromise, adjusting the suit wholly or in part nor was any such compromise produced before the court. 26. The minutes of the proceedings reveal that the parties to the suit at no point of time entered into a compromise, adjusting the suit wholly or in part nor was any such compromise produced before the court. The verdict handed down by Madrasa Asna Ashariya District Kargil, was not a compromise between the parties but reflected decision of Madrasa Asna Ashariya District Kargi,. The Trial Court did not formally refer the matter to the Arbitration of Madrasa Asna Ashariya District Kargi, but merely adjourned the matter at the request of the parties so as to enable the parties to reach a negotiable settlement to be facilitated by Asna Ashariya Board Kargil, It appears that even the initial request for adjournment dated 18.11.1989 was not made by all the parties to the suit and resultantly a prayer was made or 8.12.1990 to notify the verdict handed down by Madrasa Asna Ashariya District Kargil, to other parties so that they can also be brought within its hold and made to subscribe to and be bound by it. 27. Furthermore it was the appellant before this court who informed the Trial Court on 23.12.1991 that there was no possibility of compromise between the parties and persuaded the Court to proceed with the trial. So viewed the case set up by the appellants that the Trial Court was stripped of jurisdiction to try the suit after the Madrasa Asna Ashariya District Kargil, gave its verdict, is bereft of any merit and contrary to the facts emerging from the proceedings before the Trial Court. 28. In the circumstances, the question No.2 is also answered in negative and it is held that the cause of action to maintain the suit, did not vanish in wake of the decision of Shariee Board, Madrasa Asna Asharia District Kargil and that the Trial Court had jurisdiction to pass the judgment and decree impugned it the appeal. 29. Ld. Counsel for the appellant has no dilated on question whether Civil 2nd Appeal can be treated as revision. Ld. Counsel for the parties, as a matter of fact, has no addressed any argument on the said question. Otherwise also the answer to the question, in view of the case set up by the appellants, has no bearing on the fate of the Civil 2nd Appeal. Ld. Counsel for the parties, as a matter of fact, has no addressed any argument on the said question. Otherwise also the answer to the question, in view of the case set up by the appellants, has no bearing on the fate of the Civil 2nd Appeal. The question whether the Civil 2nd Appeal can be treated as a revision, does not, in facts and circumstances of the case, assume status of a substantial question of law and warrants no answer. 30. For the reasons discussed above, the Civil 2nd Appeal is held to be devoid of any merit and is hereby dismissed with costs. Record, both received from Trial Court and Ist. Appellate Court, be returned and the record of Civil 2nd Appeal sent to the Records.