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2015 DIGILAW 655 (JK)

Gh. Mohd. Matoo v. Gh. Rasool Sofi

2015-12-11

HASNAIN MASSODI

body2015
JUDGMENT : Hasnain Massodi, J. 1. Abdul Aziz Shawl S/o. Salam-din-Shawl R/o Kalashpora, Srinagar respondent No. 5 in CIMA No. 105/1999 passed away on 17th July 2006. The appellant has filed instant application with the prayer that respondent No. 5 be deleted from array of respondents. The appellant obviously did not take steps to bring on record legal representatives of the deceased respondent, within the time prescribed under law. This has emboldened respondents 1 to 4 to oppose application on the ground that the appeal has abated because of failure of the appellant to bring on record legal representatives of the deceased respondent and, is to be dismissed along with application for deletion of respondent No. 5 from the array of respondents. The background facts may be noticed, in first instance. The appellant on 3.05.1984 filed a suit for declaration and permanent injunction. His case in the suit was that he and defendant No. 1 were owners in possession in equal shares of plot of land measuring 10 kanals and 12 marlas, comprising survey No. 438 Khewat No. 9 situated at Gulab Bagh, Tehsil Ganderbal, having purchased it from the original owners vide sale deed dated 03.05.1974 and registered on 20.12.1974; that the suit land was partitioned by appellant and respondent No. 1 by private partition and he was in possession of 5 kanals and 6 marlas out of the suit land; that defendants 2 to 4 relying on agreement to sell claimed to have been executed by plaintiff and defendant No. 1 in their favour through defendant No. 5 on 19.10.1977 and registered on 27.10.1977 were interfering with his possession over suit land. It was pleaded that agreement to sell in question was tainted with fraud, hit by Jammu and Kashmir Agrarian Reforms Act and did not confer any right on the defendants 2 to 5. He on the grounds pleaded sought declaratory decree, declaring agreement to sell dated 19.10.1977 registered on 27.10.1977, a nullity and not to confer any right on defendants 2 to 5 and to declare plaintiff as owner in possession of 5 kanals and 6 marlas, out of the suit land. The appellant also sought decree of permanent injunction, restraining defendants from interfering with the suit land. The suit was amended on 4.02.1999 and plaintiff permitted to incorporate relief of decree for possession, to the relief clause in the plaint. 2. The appellant also sought decree of permanent injunction, restraining defendants from interfering with the suit land. The suit was amended on 4.02.1999 and plaintiff permitted to incorporate relief of decree for possession, to the relief clause in the plaint. 2. The Trial Court dismissed the suit on 23rd July 1999. The trial court judgment was questioned in Civil first Miscellaneous Appeal being CIMA No. 105/1999. The appeal was allowed on 01.11.2004 and the trial court judgment dated 23rd July 1999 set aside. The suit was remanded for fresh disposal. The judgment of the appellate court was assailed by defendants 2 to 4 in the Letters Patent Appeal being LPA No. 65/2006. The Letters Patent appeal was accepted on 04.06.2014 and appellate court judgment set aside and appeal directed to be heard afresh. 3. The pendency of the Letters Patent Appeal, however, appears not to have come in the way of trial court to deal with the civil suit on its remand. Learned Additional District Judge, Srinagar after the suit was remanded considered the matter afresh and vide judgment dated 28.02.2005, allowed the suit and passed a decree in ex-parte in favour of the appellant and against the respondents. The trial court judgment dated 28.02.2005 is questioned by defendants 2 to 4 in CIA No. 07/2006. Both the appeals i.e., CIA No. 105/1999 and CIA No. 07/2006 are pending adjudication. So much about the background facts. Let us now shift focus to the application for deleting respondent No. 5 from the array of respondents. 4. Appellant's case is that respondent No. 5 was only a proforma respondent and against him no relief was sought in the plaint or CIA No. 105/1999 and that appellant was free to delete the respondent No. 5 from the array of respondents. It is pointed out that even respondents 2 to 4 filed and prosecuted Letters Patent Appeal against the appellate court judgment dated 01.11.2004, without bringing on record legal representatives of deceased respondent. 5. The application is opposed by the respondents 2 to 4 on the grounds that the respondent No. 5 was not arrayed as proforma defendant in the suit as relief was sought against respondent No. 5 alongside respondents 2 to 4. They insist that the appellant was required to bring on record legal representatives of the deceased respondent within the time prescribed under law. They insist that the appellant was required to bring on record legal representatives of the deceased respondent within the time prescribed under law. It is pleaded that the respondent No. 5 was proper and necessary party to suit and appeal and therefore failure to bring on record his legal representatives is to result in abatement of appeal. 6. Heard and considered. 7. Whether deceased respondent/defendant was necessary and proper party to the suit and the Civil First Appeal arising therefrom, is pivotal question for the disposal of application on hand. The fate of the application hinges on answer to the question. To find out whether the deceased respondent/defendant was necessary and proper party to the suit/Civil First Appeal, it is necessary to give a closer look to the plaint. Appellant's/plaintiffs case before the Trial Court, as already pointed out was that defendants 2 to 4 were keen to interfere with his possession over his part of the suit land (5 kanals and 6 marlas) on the basis of agreement to sell dated 19.10.1977 registered on 27.10.1977. The agreement was said to have been executed by defendants/respondents 2 to 4 through deceased respondent/defendant. The deceased respondent/defendant, therefore, is alleged to be a broker or land dealer who facilitated deal between the parties. The agreement to sale questioned in the suit is shown to have been executed by appellant/plaintiff and respondent/defendant No. 1 in favour of respondents/defendants 2 to 4. The deceased respondent was not a party to the agreement to sell in question and did not claim any rights under the agreement. The grievance, if any, of the appellant/plaintiff is against respondents/defendants 2 to 4. All reliefs, therefore, are sought against respondents/defendants 2 to 4. It would be appropriate to reproduce paras 4, 6 and 8 of the amended plaint. (4) That the defendants 2 to 5 base their claim on an agreement to sell stated to have been executed by the plaintiff and defendant No. 1 on 19.10.1977 registered on 27.10.1977 in favour of defendants 2 to 4 through defendant No. 5 during the period when there was a restriction on the sale of the land which is a nullity in the eye of law. The plaintiff who is an illiterate person has received no consideration whatsoever and has never handed over possession of his share of land to any of the defendants as alleged by them. The plaintiff who is an illiterate person has received no consideration whatsoever and has never handed over possession of his share of land to any of the defendants as alleged by them. The agreement to sell does not confer any right to the defendants moreso when the same is illegal, against the provisions of Agrarian Reforms Act and based on fraud, coercion and undue influence and pressure and as such null and void in the eye of law and is not binding on the plaintiff. (6) That the defendants 2 to 4 during the pendency of the suit before the High Court and after the order dated 08.05.1984 passed by the High Court blocked the common approach to the orchard of the plaintiff and removed the barbed wire dividing the portions of the plaintiff and defendant No. 1 and took forcibly possession of the land of the plaintiff. They go a sale deed executed by defendant No. 1 for his 5 Kanals and 6 Marlas vide two sale Deeds registered on 12.06.1984 and 15.06.1984 in order to grab the land of the plaintiff and have under the cover of these illegal sale deeds took possession of the land of the plaintiff. The defendants 2 to 4 are the family members of a Judicial Officers who has threatened the plaintiff with dire consequences. The plaintiff had moved two applications in the High Court, one for initiating contempt proceedings and another for appointment of Receiver but these applications and the suit were not listed from December 1984 to 26.05.1989 when the suit was transferred to this court and the applications are missing and are not attached with the suit. (8) That the defendants 2 to 4 have no right or title to retain the possession of plaintiff's land who is its true owner. A close reading of paras extracted above, supports the conclusion that the grievances agitated in the plaint are against respondents/defendants 2 to 4 and not the deceased respondent. 8. It is settled law that a necessary party is one without whom no order can be effectively made, a proper party on the other hand is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the questions involved in the proceedings. 8. It is settled law that a necessary party is one without whom no order can be effectively made, a proper party on the other hand is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the questions involved in the proceedings. Reference in this regard may be made to law laid down in Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar and another, AIR 1963 SC 786 (1). The deceased respondent/defendant as pointed out is not a party to the agreement to sell - bone of contention in the suit and proceedings emanating therefrom. It is nowhere stated that he claimed any right over the suit property. His presence was not necessary for effective adjudication of the issues raised before the Trial Court and thereafter the First Appellate Court. The defendants/respondents 2 to 4 in reply to the appellant's/plaintiffs suit insist that they acquired ownership rights over the suit land, under the agreement executed in their favour by appellant and defendant No. 1. It is not their case that the deceased respondent/defendant had also acquired any rights under the agreement nor is it the case of appellant/plaintiff No. 1. So viewed, the deceased respondent/defendant was not a necessary and proper party to the suit and the proceedings arising out of the suit. 9. The above conclusion is further reinforced by the proceedings before Letters Patent Appeal Court. It may be recalled that the respondents/defendants 2 to 4 questioned the appellate court judgment dated 01.11.2004, whereby CIMA No. 105/1999 was allowed, and Trial Court judgment set aside and suit remanded to the Trial Court for fresh disposal, in Letter Patent Appeal being LPA No. 65/2006. The respondents/defendants 2 to 4 did not ask respondent/defendant No. 5 to join them as co-appellant. Had deceased respondent any right in the subject matter of suit, he would have joined respondents/defendants 2 to 4 as co-appellant. He was arrayed as a respondent in the appeal. His legal representatives were not brought on record. This makes it amply clear that deceased respondent/defendant was not treated by respondents/defendants 2 to 4 as a necessary or proper party to the suit and Civil First Appeal arising out of the suit. He was arrayed as a respondent in the appeal. His legal representatives were not brought on record. This makes it amply clear that deceased respondent/defendant was not treated by respondents/defendants 2 to 4 as a necessary or proper party to the suit and Civil First Appeal arising out of the suit. The respondents/defendants 2 to 4 therefore, cannot be heard saying that deceased respondent was necessary and proper party to the suit and Civil First Appeal and therefore failure to bring on record his legal representatives would result in abatement of the appeal. 10. The deceased respondent/defendant did not also join the respondents/defendants 2 to 4 in CIA No. 07/2006 directed against the Trial Court judgment dated 28.02.2005. On the other hand respondents/defendants 2 to 4 arrayed him as a respondent without seeking any relief against him. The respondents/defendants 2 to 4 did not also take steps to bring on record his legal representatives. It is pertinent to point out that CIA No. 07/2006 was presented on 16.02.2006. The respondents/defendants survives. The suit or appeal may not abate at all, also in case the surviving respondents/defendants represent the deceased respondent/defendant. Reliance in the regard may be placed on law laid done in Mangal Singh and Ors. v. Shrimati Rattno and Anr., AIR 1967 SC 1786 , Radha Rani Bhargava v. Hanuman Prasad Bhargava, AIR 1966 SC 216 , Hiralal and Anr. v. Gajjan and Ors., AIR 1990 SC 723 , and Kanhaiyalal v. Rameshwar and Ors., AIR 1983 SC 503 . For the reasons discussed the CIMA No. 105/1999 is held not to have abated because of death of respondent/defendant No. 5 and failure on part of appellant/plaintiff to bring on record his legal representatives. Resultantly the application is allowed and respondent/defendant No. 5 deleted from the array of respondents.