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2010 DIGILAW 2238 (ALL)

VEER SAIN v. OM PAL

2010-07-29

RAKESH TIWARI

body2010
JUDGMENT Hon’ble Rakesh Tiwari, J.—Heard Sri Santosh Kumar Srivastava, counsel for the proposed defendant appellant and perused the record. 2. This second appeal has been filed by Veer Sain, son of late Brahm Singh, resident of village Badawad, Tehsil Baraut, district Baghpat, claiming himself to be proposed defendant appellant against Om Pal son of Abhay Ram and his real brother Sudhir Chikara, both resident of village Badawad, Tehsil Baraut, district Baghpat. 3. The second appeal has been preferred by the said proposed defendant appellant challenging the validity and correctness of judgment and decree dated 26.4.2010 passed by Ist Additional District Judge, Baghpat in civil Appeal No. Nil of 2010, arising out judgment and decree dated 3.4.2010 passed by Civil Judge (J.D.-II), Baghpat in original suit No. 136 of 2004, between Om Pal...plaintiff and Sudhir Chikara...defendant. 4. The dispute relates to Khasra No. 674, area 0.181 hectare situate in village Badawad, Tehsil Baraut, district Baghpat. Late Brahm Singh, father of the proposed defendant appellant, was the recorded owner of the aforesaid land and a registered sale deed is said to have been executed by Civil Judge (J.D.), Baghpat pursuant to ex parte judgment and decree dated 20.10.1995 passed in original suit No. 252 of 1994 against Brahm Singh, father of proposed defendant appellant Veer Sain. It is in the aforesaid manner that plaintiff respondent No. 1- Om Pal became owner of the land in dispute. Om Pal thereafter on 2.11.2001 executed a registered sale deed in favour of defendant respondent No. 2-Sudhir Chikara, brother of the proposed defendant appellant, for sale consideration of approximately Rs. 67000/-. 5. Events thereafter took a turn. Defendant respondent No. 2 Sudhir Chikara, brother of the proposed defendant appellant, is said to have gone missing since 27.8.2003 and his whereabouts are not known. An application is said to have been given by proposed defendant appellant Veer Sain in the police station Binauli to the effect that his brother Sudhir Chikara is missing. This first information report appears to have been lodged on 13.10.2003 i.e. almost one and half months. After the incident of 27.8.2003 i.e. the date when Sudhir Chikara-defendant respondent No. 2 is said to have gone missing, the proposed defendant appellant claims that he came in physical and cultivatory possession of the land in question. This first information report appears to have been lodged on 13.10.2003 i.e. almost one and half months. After the incident of 27.8.2003 i.e. the date when Sudhir Chikara-defendant respondent No. 2 is said to have gone missing, the proposed defendant appellant claims that he came in physical and cultivatory possession of the land in question. After lodging the first information report on 13.10.2003, within three months proposed defendant appellant Veer Sain on 5.2.2004 filed original suit No. 2 of 2004 for specific performance of the agreement to sell dated 6.2.2001 regarding adjoining land of Khasra No. 275 area 0.818 hectare, which is said to have annoyed plaintiff respondent No. 1 Om Pal. It is stated that Om Pal, plaintiff respondent No. 1 in retaliation filed original suit No. 136 of 2004 for cancellation of the sale deed dated 2.11.2001 against Sudhir Chikara, brother of the proposed defendant appellant though it is stated that he had knowledge that Sudhir Chikara had gone missing with effect from 27.8.2003. 6. It is argued that Civil Judge (J.D.-II), Baghpat without framing any issue and without adjudicating the case, by an ex parte judgment dated 3.4.2010 decreed the suit. Civil Appeal No. nil of 2010 was preferred by proposed defendant appellant Veer Sain before the District Judge, Baghpat which has been dismissed at the admission stage itself holding that the appellant has no locus standi and is not an aggrieved person. Judgments and decree dated 3.4.2010 in the suit and dated 26.4.2010 in the civil appeal, is said to have given right to the proposed defendant appellant to file the present second appeal. 7. Admitted facts in this case may now be summarised as under : (a) Om Pal-plaintiff respondent No. 1 had become owner of the land in dispute on the basis of a registered sale deed executed by Civil Judge on the basis of judgment and decree dated 20.10.1995 passed in original suit No. 253 of 1994. (b) Proposed defendant appellant claims that he came into cultivatory possession of the land of his brother after he had gone missing i.e. after 27.8.2003. (c) Suit No. 136 of 2004, was filed by Om Pal-plaintiff respondent No. 1 for cancellation of sale deed dated 2.11.2001 against Sudhir Chikara, brother of the proposed defendant appellant and not against Veer Sain-proposed defendant appellant. (c) Suit No. 136 of 2004, was filed by Om Pal-plaintiff respondent No. 1 for cancellation of sale deed dated 2.11.2001 against Sudhir Chikara, brother of the proposed defendant appellant and not against Veer Sain-proposed defendant appellant. (d) No written statement was filed by Sudhir Chikara, as such on the basis of pleadings of the parties, issues could not be framed and the suit was decreed ex parte. It was then the proposed defendant appellant Veer Sain, brother of Sudhir Chikara, respondent in suit No. 134/2004, came into picture and stepped in his shoes. Admittedly, by this time neither period of seven years had elapsed from the date Sudhir Chikara had gone missing nor there was any proceedings to adjudicate his death or mutation in favour of the proposed defendant appellant Veer Sain, who claims himself to be the real brother of Sudhir Chikara and in physical and cultivatory possession of the land in question. (e) Civil Appeal No. nil of 2010 has been dismissed on the ground that the appellant has no locus standi to file the appeal. 8. It is clear from the admitted facts aforesaid that Veer Sain, who filed civil appeal No. nil of 2010 as well as the present second appeal as proposed defendant appellant, has no legal right or title over the land in dispute which belongs to Sudhir Chikara. He might have come in physical and cultivatory possession over the land on behalf of his brother Sudhir Chikara after he had gone missing w.e.f. 27.8.2003 but that would not give him a right, title or interest independent of his brother to step into his shoes till Sudhir Chikara is declared dead after seven years deeming his death to be a civil death or he is found dead and unless the name of present appellant is substituted in revenue records and he is declared as his successor by competent Court of law over the land in dispute as it is stated that Sudhir Chikara had not married and was issueless. 9. As regards non framing of issues in original suit No. 136 of 2004, Om Pal v. Sudhir Chikara, is concerned, it is settled law that issues are framed on disputed questions raised by the parties in their pleadings. 9. As regards non framing of issues in original suit No. 136 of 2004, Om Pal v. Sudhir Chikara, is concerned, it is settled law that issues are framed on disputed questions raised by the parties in their pleadings. Civil death of Sudhir Chikara cannot be presumed till date as period of seven years has not yet elapsed, therefore, if one party does not appear in a suit for whatever reason, it may be decreed even without framing issues or examining any other independent witness as claim of the plaintiff in those circumstances is unrebutted. 10. Veer Sain, proposed defendant appellant, who is neither owner of the land nor a trespasser nor a party in the suit, has no locus standi to file civil appeal before the first appellate Court. He could not even derive any right of his own to step into the shoes of Sudhir Chikara as his civil death cannot be presumed till date as there is no finding in this regard by any Court. His body has also not been found till date, therefore no presumption can be made as to his death for seven years not passed since 27.8.2003 i.e. the datefrom which he is stated to have gone missing. Whatever cultivatory rights the appellant is exercising, are the rights through his brother Sudhir Chikara, in his independent capacity as owner of disputed land who in the facts and circumstances stated above cannot be said to have transferred those rights to the proposed defendant appellant. The appellant also cannot claim to be in adverse possession over the land in dispute and if there are any orders against Sudhir Chikara, he may take course of law for setting them aside or any other remedy available to him. In case his civil death is presumed in law after seven years, then his legal heirs and representatives may take recourse to appropriate remedy under law which may be available to them. 11. In my considered opinion, the Courts below has rightly come to the conclusion that Veer Sain claiming himself to be proposed defendant appellant had no locus standi at this stage to maintain the appeal. No substantial question of law arises for consideration in this second appeal which has been filed by the said proposed defendant appellant. 12. 11. In my considered opinion, the Courts below has rightly come to the conclusion that Veer Sain claiming himself to be proposed defendant appellant had no locus standi at this stage to maintain the appeal. No substantial question of law arises for consideration in this second appeal which has been filed by the said proposed defendant appellant. 12. For the reasons stated above, this second appeal is dismissed on the ground that appellant has no locus standi and the order of the lower appellate Court is confirmed. No order as to costs. ————