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2017 DIGILAW 1293 (HP)

Murari Dass v. Gopal Dass

2017-11-23

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. 1. The plaintiff instituted a suit against the defendants for declaration and for permanent prohibitory injunction. The suit of the plaintiff stood decreed by the learned trial Court. In an appeal carried therefrom by the aggrieved defendant No.1 before the learned First Appellate Court, the latter Court dismissed the appeal, whereupon, it concurred with the verdict recorded by the learned trial Court. In sequel thereto, the defendant No.1/appellant herein is driven to institute the instant appeal here before. 2. Briefly stated the facts of the case are that the plaintiff filed a suit against the defendants before the learned trial Court for seeking decree for declaration that the plaintiff is owner in possession along with his share holders and that the entry in the name of the defendants in Column No.9 Ba-Bajah Rehan is illegal, void, without any basis against the Act, Rule and statute and against the principles of natural justice and for permanent prohibitory injunction restraining the defendants from interfering in the ownership and possession of the plaintiff in any manner, whatsoever and in the alternative suit for possession on basis of title, if the defendants claim their possession on the basis of illegal entries. It was averred in the plaint that the plaintiff is joint owner in possession along with share holders of the suit land and that the defendants have no right, title or interest over the same. The plaintiff has no clash of interest with his joint owners and as such, they are not arrayed as parties. It is further averred that the defendants in connivance with the revenue staff manipulated false entry of mortgage of the part of the suit land, contrary to the law and rules behind the back of the plaintiff and his predecessor-in-interest and the plaintiff is bound by such entry. The defendants never possessed any part of the suit land, but on the basis of the wrong and illegal revenue entries of Ba-Bajah Rehan in the column of possession are threatening to take forcible possession on 2.6.1996, but they were not allowed to take the forcible possession and subsequently, on 7.6.1996, the plaintiff came to know from Halqua Patwari about the wrong and fictitious entries qua the suit land. As such, the plaintiff has prayed that the decree as prayed for be passed in his favour and against the defendants. 3. As such, the plaintiff has prayed that the decree as prayed for be passed in his favour and against the defendants. 3. The defendant No.1 contested the suit and filed written statement, whereas, defendant No.2 did not contest the suit and was ordered to be proceeded against ex-parte. It was pleaded by defendant No.1 that he is owner in possession of khasra No. 791, 1378 and 1377 since the plaintiff has failed to redeem the suit land within the stipulated period of 30 years and it was further averred that the land comprised in Khasra Nos. 791, 1378 and 1377 in Khata No.264, Khatauni No.414 and 415 mortgaged by the ancestors of the plaintiff about hundred years ago with the ancestors of the replying defendant. As such, the plaintiff has no right to file the present suit and the suit is time barred. In the alternative, it was further pleaded that if the defendants failed to prove the mortgage in that event he has become owner of khasra Nos. 791, 1378 and 1377 by way of adverse possession. The defendant has further pleaded that he has no concerned with the land in Khatoni No. 413. However, he has claimed exclusive ownership and possession of khasra No. 791, 1378 and 1377. It was also pleaded that the suit is time barred and the plaintiff has lost the right to redeem the land and the plaintiff is estopped by his act and conduct to file the present suit. 4. The plaintiff/respondent herein filed replication to the written statement of the defendant/appellant herein, wherein, he denied the contents of the written statement and re-affirmed and re-asserted the averments, made in the plaint. 5. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the plaintiff is joint owner in possession and entry of defendants as Ba-Bajah Rehan is illegal, void, as alleged? OPP. 2. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction, as prayed for? OPP. 3. Whether the defendants have become owners by foreclosure, as alleged? OPD. 4. Whether defendant No.1 has become owner in possession of the suit land by way of adverse possession? OPD. 5. Whether the suit is not maintainable in the present form? OPD. 6. Whether the plaintiff has no cause of action to file the present suit? OPD 7. OPP. 3. Whether the defendants have become owners by foreclosure, as alleged? OPD. 4. Whether defendant No.1 has become owner in possession of the suit land by way of adverse possession? OPD. 5. Whether the suit is not maintainable in the present form? OPD. 6. Whether the plaintiff has no cause of action to file the present suit? OPD 7. Whether the suit is time barred? OPD. 8. Whether the suit is not maintainable for the non joinder of necessary? OPD. 9. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiff/respondent herein. In an appeal, preferred therefrom by defendant No.1/appellant before the learned First Appellate Court, the latter Court dismissed the appeal and affirmed the findings recorded by the learned trial Court. 7. Now defendant No.1/appellant herein, has instituted the instant Regular Second Appeal before this Court wherein he assails the findings recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission on 27.8.2009, this Court, admitted the appeal instituted by defendant No.1/appellant against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- 1. Whether there has been misreading of the oral as well as documentary evidence by the Courts below? 2. Whether since the legal representatives of deceased Bohra Ram were not brought on record, the decree is sustainable in law? Substantial questions of Law 2. 8. The extant appeal is instituted by defendant No.1 Murari Dass. However, a perusal of the grounds of appeal, reveal (i) that co-defendant Bohra Ram expired on 4.12.2006. Obviously, when Civil Appeal No.77 of 2005 stood instituted before the learned First Appellate Court on 8.7.2005 and a rendition thereon stood pronounced on 14.12.2006, (ii) whereas, with codefendant No.2 Bohra Ram expiring, on 4.12.2006, (iii) therefrom, a firm conclusion erupts of his demise occurring, during, the pendency of the apposite first appeal before the learned First Appellate Court. A perusal of the record reveals that (iv) neither the contesting defendant/appellant herein, one, Murari Dass nor the sole plaintiff one Gopal Dass, motioning the learned First Appellate Court, for begetting substitution of deceased co-defendant No.2, Bohra Ram by his legal representatives. However, the aforesaid motion is made before this Court. A perusal of the record reveals that (iv) neither the contesting defendant/appellant herein, one, Murari Dass nor the sole plaintiff one Gopal Dass, motioning the learned First Appellate Court, for begetting substitution of deceased co-defendant No.2, Bohra Ram by his legal representatives. However, the aforesaid motion is made before this Court. The settled principle of law, (v) is, of Courts, where at the demise of the litigant concerned occurring, alone holding jurisdiction, to make an order upon the apposite application instituted there before, for hence begetting substitution of any deceased litigant concerned, by the latter's legal representatives. Consequently, bearing in mind, the aforesaid principle of law, (vi) the effort here at made by defendant No.1/appellant herein one Murari Dass, to beget substitution of deceased co-defendant No.2, Bohra Ram, by his legal representatives, is an untenable exercise, rendering it to suffer the ill fate, of, it being discountenanced. Also with the name of co-defendant No.2 Bohra Ram, still, occurring in the memo of parties, of, the impugned rendition recorded upon Civil Appeal No. 77of 2005, by the learned First Appellate Court, (a) renders it to be ingrained with a tinge of void-ness, (b) given it being pronounced against a deceased litigant, (c) who thereat remained un-substituted by his legal representatives. Sequel, thereof would, be of, (d) the impugned rendition warranting its being quashed and set aside AND an order being made, for the remanding, of, the lis vis-a-vis the learned First Appellate Court, (e) for enabling it, to, after re-registering the apposite Civil Appeal, its, in accordance with law, (f) rendering an adjudication upon an apposite application moved before it, by the litigant concerned, for begetting substitution of co-defendant No.2 Bohra Ram, by his legal representatives, whereafter, its proceeding to pronounce a fresh adjudication upon the aforesaid Civil Appeal. 9. However, the learned counsel appearing for the respondent/plaintiff, has, made a vigorous attempt before this Court, for constraining it to, not, make the aforesaid pronouncement. He, in making the aforesaid endeavour, has placed reliance upon the provisions existing in sub rule (4) to Rule 4 of Order 22 of the CPC, provisions whereof read as under: “4. 9. However, the learned counsel appearing for the respondent/plaintiff, has, made a vigorous attempt before this Court, for constraining it to, not, make the aforesaid pronouncement. He, in making the aforesaid endeavour, has placed reliance upon the provisions existing in sub rule (4) to Rule 4 of Order 22 of the CPC, provisions whereof read as under: “4. Procedure in case of death of one of several defendants or of sole defendant.-(1) Where one of the two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant. (4)The court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.” On anvil thereof, he contends that with the provisions borne therein, empowering, this Court, (i) to exempt the plaintiff, from, the necessity of begetting substitution of deceased defendant No.2 by his legal representatives, (ii) especially when the latter has omitted to file a written statement to the plaint or who after instituting a written statement, may have failed to appear or contest the suit, (iii) besides its empowering Court(s), to, after apposite exemption(s), within its domain, being accorded vis-a-vis the plaintiff, to, hence pronounce a verdict upon the merits of the apposite lis. He thereafter contends, that (iv) with co-defendant No.2 being proceeded against ex-parte, hence, his failing to appear and contest the extant suit, dehors even if, he had instituted a written statement, to the plaint, thereupon, rather with the ingredients, cast in sub-rule (4) to Rule 4 of Order 22 of the CPC, begetting satiation, (v) hence, this Court being empowered, to, exempt the plaintiff or defendant No.1/appellant, from, begetting substitution of deceased co-defendant No.2 Bohra Ram, by his legal representatives, (vi) rather than ordering for a remand, of the lis, for, relevant purpose vis-a-vis the learned First Appellate Court, whereat his demise occurred and whereat he remained un-substituted by his legal representatives. The aforesaid argument is highly misplaced and deserves to be rejected, for the reasons (a) the apposite judicially ordered exemption occurring in the relevant provisions of sub rule (4) to Rule 4 of Order 22 of the CPC, being only purveyable by the Court whereat the demise of the litigant concerned, has occurred; (b) also apposite therewith directions being evidently pronounced thereafter, by the Court concerned, especially vis-a-vis necessary correction(s) in the memo of parties, (c) directions whereof reiteratedly are enjoined to be preceded, by an order, deleting the name of the deceased litigant concerned, from the array of litigants, of, the apposite lis. (d) Contrarily with palpable non occurrence, of any order recorded, within, the ambit of sub-rule (4) to Rule 4 of Order 22 of the CPC, by the learned First Appellate Court, nor also any order in succession thereto being recorded, whereby, the name of deceased co-defendant No.2, stood deleted, from the array of parties, occurring in the memo of parties, in the impugned verdict, (e) renders, the continuation of the name of a deceased litigant in the memo of parties, of, the impugned verdict, to hence rendered it be ingrained, with a deep vice, of it being pronounced against a deceased litigant, with the concomitant effect of it necessitating its being ordered to be quashed and set aside. 10. Be that as it may, the learned counsel appearing for the plaintiff/respondent also proceeded, to make reliance upon the provisions existing in Section 99 of the CPC, provisions whereof stand extracted hereinafter: “99. 10. Be that as it may, the learned counsel appearing for the plaintiff/respondent also proceeded, to make reliance upon the provisions existing in Section 99 of the CPC, provisions whereof stand extracted hereinafter: “99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.-No decree shall be reversed or substantially varied, or shall any case be remanded, in appeal on account of any mis-joinder [or non joinder] of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court: [Provided that nothing in this section shall apply to non joinder of a necessary party] In the afore extracted provisions, there occurs a mandate, of the Appellate Court concerned, (I) being barred to reverse or substantially vary, (ii) also stands barred, to remand any case, (iii) merely, on account of occurrence of any defects vis-a-vis mis joinder or non joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit. (iv) Also despite, the afore underlined apt relevant provisions of the CPC begetting satiation, no, evincings are enjoined to emerge qua either the merits of the case or the jurisdiction of the Court being hence affected. He contends that even if, there was occurrence of any error, defect or irregularity in the memo of parties, borne, in the impugned verdict,(v) occurrence(s) thereof therein, not, within the domain of the hereinabove extracted provisions of the CPC, hence affecting the merits of the case, (vi) nor affecting jurisdiction of the Court, thereupon, this Court being barred, to, order for remand of the case, for the relevant purpose vis-a-vis the learned First Appellate Court. The aforesaid submission is also misplaced and spurs from his gross misreading(s) besides fallacious interpretation(s), of the apt hereinabove extracted provisions of the CPC. The counsel ascribes vis-a-vis the occurrence, of, name of the deceased litigant concerned, in the memo of parties, of, the impugned verdict, being an error, defect or irregularity in the proceedings, drawn upon, the apposite appeal, or held thereon by learned First Appellate Court. (vii) He has hence also fallaciously, espoused, that thereupon neither the jurisdiction of the Court nor the merits of the lis, embodied in the apposite Civil Appeal being grossly affected. (vii) He has hence also fallaciously, espoused, that thereupon neither the jurisdiction of the Court nor the merits of the lis, embodied in the apposite Civil Appeal being grossly affected. (viii) Contrarily, however, the statutory coinage “any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court” implies an error, defect or irregularity, palpably borne in proceedings made in the suit. However, hereat, no defective, irregular or erroneous proceeding(s), not, affecting the merits of the apposite Civil Appeal or jurisdiction of the learned First Appellate Court, is either reflected, or is borne (ix) in any proceedings entered upon the apposite lis, by the learned First Appellate Court, (x) rather with, no, apposite application being moved by the litigant concerned, for begetting the substitution of deceased co-defendant No.2 by his legal representatives, contrarily, begets an inference of, no, proceedings in respect thereto being hence entered upon the apposite Civil Appeal, by the learned First Appellate Court. Sequel whereof, is obviously, no defect or irregularity in respect thereto, emanating nor obviously the aforesaid purported defect, in, any purported recorded proceedings, drawn, by the learned First Appellate Court, upon, an application cast under the provisions of Order 22, Rule 4 of the CPC, hence emerging, (xi) given it evidently being not filed there before, nor it being construable, to be affecting the merits of the apposite Civil Appeal or to affect the jurisdiction of the Court concerned, imperatively when it is not stood instituted there before. 11. Be that as it may, the defect occurring in the memo of parties, in the verdict pronounced, by the learned First Appellate Court, is comprised in the name of the deceased litigant yet occurring therein. The aforesaid defect is pervasive and is not curable by this Court, especially when it occurs in a document authoured by the learned Fist Appellate Court, hence, is only curable by the learned First Appellate Court. Consequently, substantial question of law No.2 is answered in favour of the appellant and against the respondent/plaintiff. 12. Since, the matter is being remanded to the learned first Appellate Court for, an adjudication being rendered qua the aforesaid facet, hence, there is no necessity to render any adjudication upon substantial question No.1. It is answered accordingly. 13. Consequently, substantial question of law No.2 is answered in favour of the appellant and against the respondent/plaintiff. 12. Since, the matter is being remanded to the learned first Appellate Court for, an adjudication being rendered qua the aforesaid facet, hence, there is no necessity to render any adjudication upon substantial question No.1. It is answered accordingly. 13. For the foregoing reasons, the instant appeal is allowed and the judgment rendered by the learned First Appellate Court in Civil Appeal No. 77 of 2005 is set aside. Since, the impugned rendition of the learned First Appellate Court has been rendered against deceased codefendant No.2 Bohra Ram, it hence is a nullity.. Consequently, the matter is remanded to the learned First Appellate Court, to, after its rendering an adjudication, in accordance with law, upon an application preferred before it, by the appellant/defendant No.1, or by the plaintiff, for begetting substitution of deceased codefendant No.2 Bohra Ram by his legal representatives, its proceeding to also decide the appeal afresh, preferred thereat by defendant No.1/appellant herein. The parties are directed to appear before the learned First Appellate Court on 20th December, 2017. Records be sent back forthwith. All pending applications also stand disposed of.