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2020 DIGILAW 119 (HP)

Surinder Kumar v. Shanti Devi

2020-01-10

TARLOK SINGH CHAUHAN

body2020
JUDGMENT Tarlok Singh Chauhan, J. - Since common questions of law and facts arise for consideration in the appeal as also in the petition, the same were taken up together for hearing and are being disposed of by a common judgment. RSA No.7/2007 2. Aggrieved by the judgment and decree passed by the learned first appellate court, the appellant has filed the instant appeal. 3. Brief facts of the case are that respondents No. 1 to 4 filed Civil Suit No. 72/1994 claiming therein that they as well as respondents No. 5 to 8 were the legal heirs of deceased Karmu, who had died intestate and thus, they had succeeded to the estate of the deceased Karmu. A declaration was sought by them that the will proclaimed by the appellant, alleged to have been executed by Karmu in his favour on 16.4.1993(Ext. D1) qua suit land measuring 14 Marlas comprised in Khewat No. 305, Khatauni No.354, bearing Khasra No. 1539, situated in Mauja Bathri, Sub Tehsil Haroli, District Una and Mutation No. 2659 (Ext.D7) attested in favour be declared null and void. 4. Deceased Karmu had also instituted Civil Suit No. 77/1993 against one Bimla Devi and Harnam Singh and had sought a decree for declaration that he be declared owner in possession of 10 Kanals 1 Marla and abadi in respect of land measuring 9 Kanals 7 Marlas being share out of the land measuring 19 Kanals 14 Marlas comprised in Khewat No. 304, Khatauni No.353, bearing Khasra Nos.1246, 1321, 1582/2, 1590, 1952, 1959 and land measuring 0-4 being share out of total land measuring 0-7 Marlas comprised in Khewat No.306 min Khatauni No. 355 min. Khasra No.1579/1 (0-7), along with house/structure and abadi by laying challenge to the sale made in respect of the aforesaid property by way of registered sale deed by his alleged attorney Harnam Singh in favour of Bimla Devi to be illegal, null and void. The said suit was being adjudicated by Senior Sub Judge, Una and during the pendency of the said suit, on account of death of Karmu an application under Order 22 Rule 3 CPC came to be instituted by the appellant for being substituted on record of the suit as legal representative of Karmu, which was registered as Civil Misc. Application No. 83/06. Application No. 83/06. The application came to be allowed vide order dated 11.6.2006 and it was held that the appellant is the only legal representative of Karmu on the basis of the will executed by Karmu. However, the said order was assailed by respondents No. 1 to 8 herein before the learned Additional District Judge (Fast Track Court), Una, by way of Misc. Appeal No.5 of 2006. The appeal came to be allowed on 11.12.2007 by holding that the natural heirs of Karmu are entitled to the estate of the deceased and are also the rightful legal representatives to succeed him in Civil Suit No. 77/1993. After disposal of the appeal, the parties were directed to appear before the trial court on 15.2.2008, on which date further proceedings in the suit were taken up. However, on the basis of the statement made on behalf of the legal representatives of Karmu, the suit was dismissed as withdrawn. On account of the same, the appellant instituted CMPMO No.177/2011. 5. During the pendency of the instant appeal, respondent No.5, Shankari, wife of Surjit expired on 10.10.2008 and her estate has devolved upon her legal heirs namely, Gurmit Singh, Harjit Singh, Davinder Kaur. 6. Now, by medium of CMP No. 663/2020, the appellant has stated that the parties to the instant appeal including legal heirs of respondent No.5 have arrived at out of court settlement amicably in order to put an end to the controversy involved in the aforesaid appeal in the following terms: (a) Respondents herein i.e. respondents No. 1 to 4 and 6 to 8 including legal heirs of respondent No.5 do not dispute the legality, validity and genuineness of Will dated 16.4.1993(Ext.D1) executed by Shri Karmu in favour of Shri Surinder Kumar as well as the order passed in mutation No. 2659(Ext.D7) which came to be attested in favour of the appellant-applicant Shri Surinder Kumar on the basis of the Will of Shri Karmu. The aforesaid respondents further admit, acknowledge and accept that appellant-applicant Shri Surinder Kumar shall be deemed to be owner in possession of land measuring 14 Marlas comprised in Khewat No.305, Khatauni No. 354 bearing Khasra No. 1539 situated in Mauja Bathri, Sub Tehsil Haroli, District Una, H.P., subject matter of RSA No.7/2007 and further that the suit instituted by them being Civil Suit No. 72 of 1994 would be deemed to have been dismissed. (b) Respondents No. 1 to 4 and 6 to 8 including legal heirs of respondent No.5, as aforesaid agree and undertake that they shall not exercise any right of ownership or possession in respect of the aforesaid land and also shall not cause any interference whatsoever with the title and possession of appellant-applicant in respect of the said land, in any manner whatsoever. (c) Respondents-applicants including legal heirs of respondent No.5 on the basis of the present settlement arrived at between the parties shall facilitate the change of revenue entries in favour of the appellant-applicant in respect of the aforesaid land, subject matter of Civil Suit No. 72 of 1994 and present appeal and on account of the fact that they have acknowledged the ownership and possession of appellant-applicant Shri Surinder Kumar in respect of the land in question. (d) It is further agreed by respondents No. 1 to 4 and 6 to 8, including legal heirs of respondent No.5 that they have no objection in case order dated 11.12.2007 passed by Additional District Judge (Fast Track Court), Una (HP) in Civil Miscellaneous Appeal No.5 of 2006 as well as order dated 15.2.2008 passed by Civil Judge (Junior Division) Court No.2 Una (HP) in Civil Suit No.77 of 1993 are set aside by holding Shri Surinder Kumar to be the only legal representative of Shri Karmu on the basis of Will executed by him in his favour and further for restoration of Civil Suit No. 77 of 1993 to its original number. The said respondents further agree and undertake that they shall have no objection in case the said suit after being restored to its original number may be pursued further by Shri Surinder Kumar (appellant-applicant) against Smt. Bimla Devi and Shri Harnam Singh. Respondents No.1 to 4 and 6 to 8, including legal heirs of respondent No.5 further agree that they shall have no claim left in the said suit and also in the land which is subject matter of the said suit. (e) Respondents No. 1 to 4 and 6 to 8 including legal heirs of respondent No.5 agree that they have no objection in case on the basis of the aforesaid, suitable orders are passed in CMPMO NO. 177 of 2011 by quashing and setting aside order challenged in the said proceedings i.e. Order dated 11.12.2007 in Civil Misc. (e) Respondents No. 1 to 4 and 6 to 8 including legal heirs of respondent No.5 agree that they have no objection in case on the basis of the aforesaid, suitable orders are passed in CMPMO NO. 177 of 2011 by quashing and setting aside order challenged in the said proceedings i.e. Order dated 11.12.2007 in Civil Misc. Appeal No.5 of 2006 by Additional District Judge (Fast Track Court) Una (HP) and Order dated 5.2.2008 passed by Civil Judge (Junior Division) Court No.2 Una (HP) and further for restoration of Civil Suit No.77 of 1993 to its original number. (f) Parties to the present appeal agree and acknowledge that on account of death of respondent No.5 Smt. Shankari wife of Shri Surjit on 10.10.2008, the estate of deceased has devolved only upon his sons Shri Gurmit Singh, Shri Harjit Singh and daughter Ms. Davinder Kaur and there is no other person to inherit the estate of respondent No.5. Though a separate application for theirs being substituted on record of RSA No.7 of 2007 has been filed yet the aforesaid heirs of respondent No.5 have been joined in the present settlement/compromise and have accepted the same to be true and correct. Respondents No. 1 to 4 and 6 to 8 including legal heirs of Smt. Shankari have appointed Shri Rakesh Kumar son of Shri Mangat Ram, resident of Village and P.O. Lamlehara, Tehsil and District Una (HP) their lawful attorney by executing GPA dated 17.12.2019 in his favour, which has been duly registered as Document No. 133/2019 on 17.12.2019 with Sub Registrar Haroli, District Una (HP). Copy of the same is annexed herewith as Annexure A-1. The GPA of respondents No. 1 to 5 and 6 to 8 including legal heirs of Smt. Shankari has conferred an authority on behalf of the said persons to enter into, settle, negotiate, sign and verify applications on their behalf and further to make a statement for recording of the present compromise and their lawful attorney is thus acting within the authority granted to him under the aforesaid GPA dated 17.12.2019. It is further admitted by the parties that the copy of affidavit executed by legal heirs of deceased Smt. Shankari acknowledging her death on 10.10.2008 and they alone being the legal heirs of Smt. Shankari is correct, the same is annexed herewith as Annexure A-2. It is further admitted by the parties that the copy of affidavit executed by legal heirs of deceased Smt. Shankari acknowledging her death on 10.10.2008 and they alone being the legal heirs of Smt. Shankari is correct, the same is annexed herewith as Annexure A-2. English translation of the same is annexed herewith as Annexure A-2/T. (g) That the parties (appellant-applicant as well as respondents No.1 to 4 and 6 to 8 including legal heirs of Smt. Shankari) including their legal heirs, representatives and assigns shall remain bound with the present settlement and the appeal being RSA No.7 of 2007 shall be disposed of in terms of the present compromise. The parties further agree that suitable order of seeking disposal of CMPMO No. 177 of 2011 may also be passed on the basis of the present compromise. 7. The opposite party has no objection in case the instant appeal is disposed of on the basis of the terms of the compromise. Statements of the respective counsel are taken on record and CMP No. 663/2020, as prayed for, is allowed. 8. In view of compromise arrived at between the parties, the instant appeal is disposed of. The judgments and decrees passed by the learned courts below are modified accordingly. Pending application(s), if any, also stands disposed of. CMPMO No. 177/2011 9. In view of compromise arrived at between the parties in RSA No. 7/2007, the petition is allowed and the order dated 11.12.2007 in Civil Misc. Appeal No. 5/2006 passed by learned Additional District Judge(Fast Track Court), Una and order dated 5.2.2008 passed by learned Civil Judge (Junior Division) Court No.2,Una in C.S. No. 77/1993 are set aside and C.S. No. 77/1993 is ordered to be restored to its original number. 10. The parties are directed to apprise the learned trial court i.e. Civil Judge (Junior Division) Court No.2,Una regarding factum of this order. 11. Needless to say that the suit would only stand restored after formal application is made to the concerned Court and the suit shall be adjudicated strictly in accordance with its merits save and except where the parties may otherwise choose to compromise the same. 12. Since the suit is of the year 1993, therefore, it is expected that the learned trial court shall decide the same as expeditiously as possible and in no event later than 31.12.2020. 13. 12. Since the suit is of the year 1993, therefore, it is expected that the learned trial court shall decide the same as expeditiously as possible and in no event later than 31.12.2020. 13. Now, that the compromise has been arrived at between the parties, therefore, revenue authorities are directed to carry out necessary correction(s) in the revenue record strictly in accordance with the terms of the compromise, as mentioned in para 4(a) to 4(g) of CMP No. 663/2020 within eight weeks from today. CMP No. 663/2020 shall form part of this order. It is made clear that in case any party is aggrieved by any action or inaction of the opposite party to the compromise, she/he shall be at liberty to approach this Court for redressal of grievance(s). Pending application(s), if any, also stands disposed of.