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2012 DIGILAW 249 (HP)

Sukh Ram v. Surtu Devi

2012-05-04

RAJIV SHARMA

body2012
JUDGMENT Rajiv Sharma, Judge. 1. Initially, the appellant has filed Regular Second Appeal bearing No.468 of 2010. However, later on, with the consent of parties, the same was converted into F.A.O. and assigned FAO No.143 of 2012. 2. This F.A.O. is directed against the judgment and decree passed by learned Presiding Officer, Fast Track Court, Mandi in Civil Appeal No.8 of 2009, dated 27.8.2010. 3. Material facts necessary for adjudication of this F.A.O. are that the appellant/plaintiff (hereinafter referred to as “the plaintiff” for convenience sake) has filed a suit for injunction against the respondent/defendant (hereinafter referred to as “the defendant” for convenience sake) with respect to the land detailed in the plaint. According to the plaintiff, he is owner in joint possession of suit land with other co-sharers. The defendant is stranger to the suit land. On 4.5.2005, at 1.00 p.m. the defendant started abusing the plaintiff and his family members when they were harvesting the wheat crop in the suit land. 4. The suit was contested by the defendant. According to the defendant, the suit land was owned by one Shri Kama. According to her, Damodari Devi executed a ‘will’ in her favour on 20.11.1996. It is further averred that after the death of Damodari Devi, she has become co-sharer in possession of the whole of the suit land except Khasra Nos. 805 and 899, the mutation of which has been attested in favour of defendant alongwith her three daughters and one son. According to her, mutation No.339 is null and void. She has also filed counter claim, claiming declaration that she be declared as co-owner in joint possession of suit land and possession of Khasra Nos.805 and 899 measuring 3-12-17 and 2-1-3 be handed over to her. 5. The plaintiff filed replication in the civil suit and written statement to the counter claim preferred by the defendant. The trial Court framed the issues on 3.6.2006. The learned Civil Judge (Senior Division), Jogindernagar, District Mandi decreed the suit of plaintiff and dismissed counter claim No.317 of 2008 filed by the defendant, on 27.11.2008. The defendant preferred an appeal before the learned District Judge, Mandi. The learned first Appellate Court set aside the judgment and decree of trial Court dated 27.11.2008 passed in civil Suit No.72 of 2005 and counter claim No.317 of 2008, on 27.8.2010. The defendant preferred an appeal before the learned District Judge, Mandi. The learned first Appellate Court set aside the judgment and decree of trial Court dated 27.11.2008 passed in civil Suit No.72 of 2005 and counter claim No.317 of 2008, on 27.8.2010. The matter was remanded to the trial Court and the defendant was directed to implead Smt. Sharda, Smt. Nirmala, Smt. Sarswati and Shri Deep Chand as party in the counter claim and thereafter to decide the suit and the counter claim afresh in accordance with law. Hence, this F.A.O. 6. Mr. B.S. Chauhan, learned counsel for the plaintiff has supported the judgment and decree dated 27.11.2008 passed by the learned trial Court. According to him, the learned first Appellate Court has wrongly relied upon 2008 (2) Shim. LC 203. According to him, the learned first Appellate Court could not direct the defendant to implead the parties in the counter claim. 7. Mr. G.R. Palsra, learned counsel for the defendant has supported the judgment and decree passed by the learned first appellate Court. 8. I have heard the learned counsel for the parties and gone through the records carefully. 9. What emerges from the pleadings of the parties is that one Shri Kama had two daughters, namely, Smt. Damodari Devi and Smt. Bhadri Devi. Bhadri Devi was unmarried. Smt. Damodari Devi had two sons, namely Nanak Chand and Sukh Ram. Defendant Surtu Devi is the widow of Shri Nanak Chand. She has three daughters and one son. The suit has been instituted by Sukh Ram. 10. Plaintiff has appeared as PW-1. PW-2 Chharundu, PW-3 Ram Singh, PW-4 Hari Singh and PW-5 Kanshi Ram have testified that Damodari Devi was looked after and maintained by the plaintiff. According to them, the plaintiff is in possession of the suit land. 11. The defendant, in order to prove the ‘will’ dated 20.11.1996 has examined DW-2 Jagmohan Thakur, the scribe of the ‘will’, DW-3 Budhi Singh, attesting witness and DW-4, J.C. Kaushal who has identified Smt. Damodari Devi. According to the trial Court, the defendant has not arrayed Smt. Sharda, Smt. Nirmala, Smt. Sarswati and Shri Deep Chand as party in order to prove the due execution of the ‘will’. Thus, in these circumstances, no finding has been given by the learned trial Court on the genuineness of ‘will’ dated 20.11.1996. According to the trial Court, the defendant has not arrayed Smt. Sharda, Smt. Nirmala, Smt. Sarswati and Shri Deep Chand as party in order to prove the due execution of the ‘will’. Thus, in these circumstances, no finding has been given by the learned trial Court on the genuineness of ‘will’ dated 20.11.1996. The Court is of the considered view that the trial Court ought to have given an opportunity to the defendant to array Smt. Sharda, Smt. Nirmala, Smt. Sarswati and Shri Deep Chand as party in counter claim bearing No.317 of 2008. 12. This Court in Vijay Kumar and others Versus Rattan Chand and others, 2008(2) Shim. LC 203 has held as under (para-12):- “However, the law is clear that once the Court comes to the conclusion that the suit is bad for non joinder of necessary parties, the suit cannot be dismissed and an opportunity has to be given to the learned trial Court to implead the said party as a party to the suit and proceed with the trial of the case according to law. The suit cannot be dismissed on the grounds of non-impleading of necessary parties.” 13. The learned first Appellate Court has correctly applied the ratio of Vijay Kumar and others Versus Rattan Chand and others, (supra). Smt. Sharda, Smt. Nirmala, Smt. Sarswati and Shri Deep Chand were necessary parties. The first Appellate Court has rightly come to the conclusion that the issues were required to be decided separately as required under Order 20 Rule 5 of the Code of Civil Procedure. Issues No.2, 3, 4 and 5 have been tried by the trial Court together. It was also necessary for the trial Court to give separate findings on issue No.2, i.e. the genuineness of ‘will’ dated 20.11.1996. The case set up by the defendant is that she has inherited the property by way of ‘will’ dated 20.11.1996. She has produced PW-2, Jagmohan Thakur the scribe of the ‘will’, DW-3, Budhi Singh the attesting witness and DW-4 Shri J.C. Kaushal who has identified Smt. Damodari Devi. 14. Accordingly, in view of the observations and analysis made hereinabove, there is no illegality in the judgment dated 27.8.2010 rendered by the learned Presiding Officer, Fast Track Court, Mandi, District Mandi in Civil Appeal No.8 of 2009. Consequently, the F.A.O. is dismissed being devoid of any merit. 14. Accordingly, in view of the observations and analysis made hereinabove, there is no illegality in the judgment dated 27.8.2010 rendered by the learned Presiding Officer, Fast Track Court, Mandi, District Mandi in Civil Appeal No.8 of 2009. Consequently, the F.A.O. is dismissed being devoid of any merit. The parties through their respective counsel are directed to appear before the learned trial Court, i.e. Civil Judge (Senior Division), Jogindernagar, District Mandi, H.P. on 11th June, 2012. The pending application(s), if any, also stands disposed of. No costs.