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2018 DIGILAW 731 (HP)

Bakshi Ram v. Karam Chand

2018-04-24

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J —With the consent of the parties, the appeal is being heard finally. However, before doing so, the same is formally admitted on the following substantial questions of law: 1. Whether in view of the judgment of this Hon''ble Court in RSA No. 294 of 2000 dated 16.07.2001 and 26.02.2002 and RSA No. 233 of 2003 dated 07.07.2016 it was permissible for the District Judge to not have decided the question of abatement and gone to the merits of the appeal and could allow the same without deciding the question of abatement? 2. Whether the appeal had abated and had also become in competent because of the deletion of the names of Pohlo Ram, Om Parkash and Rulia Ram as also nonimpleadment of the heirs and legal representatives of Shri Ishwar Dass and also Smt. Sheela, Sandhya, Rekha and Suresh Kumar who were appellants in the appeal RSA No. 233 of 2003 Shankar Dass versus Karam Chand? 3. Whether the assumption of the learned District Judge that in the order dated 22.10.2016 that no one had challenged the order dated 21.04.2003 and that the same had attained finality and the question of abatement to this effect has not been decided is warranted on the material on record and in view of the fact that in RSA No. 233 of 2003 Shankar Dass Versus Karam Chand decided on 07.07.2016 a specific ground of challenge against the said order have been made and appeal had also been admitted on the said substantial question and when the whole appeal had been remanded to the District Judge including the question of abatement and nonmaintainability of the appeal before the District Judge on account of abatement as also non-impleading the necessary parties is correct when the same had been specifically urged after the remand? 4. Whether on the deletion of the names of the persons against whom the decree had been passed by the trial Court, before the decision in RSA No. 233 of 2003 and after the decision dated 07.07.2016 was maintainable and competent and the findings are vitiated? 2. The appellants/plaintiffs filed a suit for permanent prohibitory injunction restraining the respondents/defendants from interfering with the bartandari rights of grazing and cutting grass etc. on the suit land and other tikadarans of Tikka Paplah and the same had been decreed by the learned trial Court vide its judgment dated 7.4.1994. 2. The appellants/plaintiffs filed a suit for permanent prohibitory injunction restraining the respondents/defendants from interfering with the bartandari rights of grazing and cutting grass etc. on the suit land and other tikadarans of Tikka Paplah and the same had been decreed by the learned trial Court vide its judgment dated 7.4.1994. The appeal against the said judgment was dismissed by learned District Judge, Hamirpur vide judgment and decree dated 1.4.2000 in Civil Appeal No. 58 of 1994 titled Karam Chand vs. Bakshi Ram. However, because of the death of Pohlo Ram, who had died during the pendency of the appeal before the learned District Judge on 17.8.1996 the matter was remanded for considering the question of abatement by this Court in RSA No. 294 of 2000, decided on 16.7.2001. By a further judgment dated 26.2.2002 the question of abatement on account of death of Rup Lal was also left to be determined by the learned District Judge. The learned District Judge vide judgment and decree dated 21.5.2003 allowed the appeal and consequently the judgment and decree passed by learned trial Court was ordered to be set-aside. 3. Before the learned District Judge, a prayer was made by the appellants that the name of Pohlo Ram, appellant No.18, Rup Lal, appellant No.5 and Om Parkash, appellant No. 24 be deleted and they were accordingly ordered to be deleted by an order dated 21.4.2003. The question of abatement on account of death of Pohlo Ram was not decided, whereas the main appeal came to be allowed on 21.4.2003. Earlier to that Smt.Devku, respondent No.4 before the learned District Judge had also died on 9.2.2002. 4. The judgment and decree passed by the learned District Judge came to be challenged before this Court by the present appellants by filing RSA No. 233 of 2003, which came to be admitted by this Court on the following substantial questions of law: 1. Whether the appeal had abated and had become incompetent because of the deletion of the name of Pohlo Ram, Om Parkash and Rulia Ram and also nonimpleading of the heirs of Ishar Dass? 2. Whether in view of the judgment of this Hon''ble Court in RSA No. 294/2000 dated 16.7.2001 and 26.2.2002 it was permissible for the Distt. Judge to have not decided the question of abatement and gone to the merits of the appeal and allow the same? 3. 2. Whether in view of the judgment of this Hon''ble Court in RSA No. 294/2000 dated 16.7.2001 and 26.2.2002 it was permissible for the Distt. Judge to have not decided the question of abatement and gone to the merits of the appeal and allow the same? 3. Whether the findings of the Court below are perverse, based on mis-reading the oral and documentary evidence, particularly Ex. D-12, PX and the statement of PW-4, Ranjit Singh, PW-5 Surjan Singh, PW-2 Ram Sahai and DW-4 Parma Nand? 5. However, when the appeal came up for final hearing before this Court, it was noticed that the judgment and decree passed by learned first Appellate Court was not in accordance with law as the first Appellate Court while reversing the findings of the learned trial Court, it had not at all advert to the reasons assigned by the learned trial Court and had simply chosen to write a separate judgment. Consequently, the appeal was allowed and the judgment and decree passed by the learned first Appellate Court was set-aside and the matter was remanded to the learned first Appellate Court with a direction to decide the same afresh in accordance with law. 6. Noticeably, none of the substantial questions of law were answered because the judgment and decree on the face of it had not been passed in accordance with law, meaning thereby that all questions as raised in the appeal were open for being canvassed before the learned first Appellate Court. However, it appears that even though the question of abatement and non-bringing on record the heirs and legal representatives of Ishwar Dass and other persons, who had died was urged before the learned District Judge. He, however, overlooked and ignored the said pleas as is evident from the order dated 21.4.2003 vide which the names of Pohlo Ram, Rup Lal and Om Parkash had been struck off on the ground that the judgment rendered by the Court earlier had attained finality as the appellants had not assailed the same and thereafter proceeded to decide the lis on merits. 7. At this stage, this Court is not dealing with the merits of the case and would confine itself to the substantial questions of law as have been framed. 7. At this stage, this Court is not dealing with the merits of the case and would confine itself to the substantial questions of law as have been framed. It needs to be clarified lest it is misunderstood that this Court is not rendering any findings on the relative merits of the case and is only concentrating on the issue as to whether the learned first Appellate Court was right in concluding that the order dated 21.4.2003 vide which the names of Pohlo Ram, Rup Lal and Om Parkash had been struck off, had not been challenged by the appellants and had thus attained finality. To say the least this findings is perverse and contrary to the records of the case. 8. The appellants had specifically not only challenged the order, but the substantial question of law to this effect had in fact been framed by this Court while admitting RSA No. 233 of 2003. This Court while allowing RSA No. 233 of 2003 had set-aside the judgment and decree passed by the learned first appellate Court in its entirety as it was not in accordance with law. This Court neither felt the need nor there was any occasion for this Court to have answered the substantial questions of law and thus all such questions were open for agitation before the learned first Appellate Court. 9. Even though the learned Senior Counsel for the respondents would contend that in absence of the questions being answered by this Court, the appellants have waived off their right and are estopped from assailing all these questions upon which the appeal was admitted. However, I find this submission to be preposterous apart from being fallacious. 10. Once the judgment and decree passed by the learned first Appellate Court had been set-aside, obviously the consequences thereof would be that the whole suit would be reopened and questions on which the first appellate Court may have earlier recorded its findings, could be re-agitated and it would be preposterous to hold that even though the appeal filed by the appellants has been allowed and the case remanded to the learned first Appellate Court, yet they would not be entitled to raise those grounds as were raised before this Court in the second appeal and had not been decided. 11. 11. In view of the aforesaid discussion, it was incumbent upon the learned first Appellate Court to have first decided the question of abatement in view of death of Pohlo Ram, Om Parkash and Rulia Ram and as also non-impleading of the heirs and legal representatives of Ishwar Dass and it is only after deciding this question, the learned first Appellate Court could have proceeded to consider whether the appeal ought to be decided on merits or deserved to be dismissed on the question of abatement. 12. Having failed to do so, the findings recorded by the learned first Appellate Court are vitiated and cannot withstand scrutiny of law. The substantial questions of law are accordingly answered. 13. Since the judgment and decree passed by the learned first appellate Court is again not sustainable in the eyes of law, the same is accordingly set-aside. 14. The matter is remanded back to the learned first appellate Court to first decide the question of abatement because of the death of Pohlo Ram, Om Parkash and Rulia Ram as also non-impleading of the heirs and legal representatives of Ishwar Dass and thereafter, if the Court comes to the conclusion that the appeal has not abated, he will proceed to decide the appeal on merits or else the same will have to be dismissed on the ground of abatement. 15. It is further made clear that this Court has not gone into the relative merits of the present case and therefore in case the appeal is to be heard on merits, it shall be open to both the parties to raise all contentions before the learned first Appellate Court as may be available to them under the law. 16. Accordingly, the appeal is allowed and the parties through their counsel(s) are directed to appear before the learned first Appellate Court on 15.5.2018. Since the suit was instituted more than two and half decades back in the year 1990, the learned first Appellate Court is requested to decide the same as expeditiously as possible and in no event later than 30th September, 2018. The appeal is disposed of in the aforesaid terms, so also the pending application(s) if any, leaving the parties to bear their own costs.