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2023 DIGILAW 830 (RAJ)

Umar Khan v. Sumer Khan

2023-04-13

SUDESH BANSAL

body2023
ORDER : Sudesh Bansal, J. - Instant first appeal has been filed by defendants No.2 & 3 challenging the judgment and decree dated 25.03.1983, whereby and whereunder civil suit for specific performance filed by respondents No.1 to 3-plaintiffs, has been decreed on the basis of a sale agreement dated 20.08.1981, against respondent No.4/defendant No.1 namely Sh. Hakim Singh and while passing the decree for specific performance, two registered sale deeds dated 29.04.1982 executed by respondent No.4/defendant No.1 namely Sh. Hakim Singh in favour of defendants No.2 & 3 in respect of suit property, have been declared null and void qua plaintiffs. 2. It may be observed that the trial Court found the appellants-defendant No.2 & 3, in possession and cultivation of the property in question, which is agricultural lands of Khasra No.771 measuring 3 biga 7 biswa and Khasra No.773 measuring 1 biga 3 biswa total 4 biga 10 biswa situated at Village Pathori, Tehsil Kama, District Bharatpur and therefore, the trial Court while passing the decree for specific performance in favour of plaintiffs, has refused to grant decree for permanent injunction in their favour. 3. The present first appeal was admitted for hearing vide order dated 05.07.1983 and during course of appeal, the execution of decree has been stayed as well as appellants have been allowed to continue cultivation of lands in question and retain possession of the agricultural lands, subject to deposition of Rs.1200/- after every six months in months of November and April of each year vide stay order dated 16.12.1989, which was passed after amending previous stay orders. 4. On perusal of previous order-sheets and record, it transpires that appeal was dismissed in default and for non prosecution due to non compliance of the peremptory order, way back on 30.04.1992. Thereafter on moving an application for restoration, the first appeal came to be restored vide order dated 07.09.2001. Since, thereafter, proceedings of first appeal are pending on applications in respect of taking legal representatives of respective parties, whosoever passed away during the intervening period, but now the matter has come up for hearing. 5. Thereafter on moving an application for restoration, the first appeal came to be restored vide order dated 07.09.2001. Since, thereafter, proceedings of first appeal are pending on applications in respect of taking legal representatives of respective parties, whosoever passed away during the intervening period, but now the matter has come up for hearing. 5. In the beginning, learned counsel for respondents drawn the attention of this Court to the order dated 26.08.2008, whereunder on the application dated 18.08.2008, bearing No.21651 filed by appellant No.2, the factum of death of appellant no.1 Umar Khan was taken on record and name of appellant No.1 Umar Khan was allowed to be deleted with observation that the effect of deletion and non-substitution of the legal heirs of the deceased appellant No.1 Umar Khan shall be considered at the time of final arguments in the appeal. 6. On this point, learned counsel for appellants, after going through the record, pointed out that as a matter of fact, appellant No.1 Umar Khan (defendant No.2 before the trial Court) had passed away on 13th December 1996, after dismissal of first appeal for non prosecution on 30.04.1992 but when the first appeal came to be restored on 07.09.2001, thereafter, application bearing No.15484 under Order 22, Rule 1, 2 & 12 along with application under Section 5 of the Limitation Act, for seeking condonation of delay, came to be filed by appellant No.2 Amar Singh on 18.08.2003. These applications were replied by contesting respondents. Learned counsel for appellants submits that inadvertently, without noticing the fact that application dated 18.03.2003, to take legal representatives of deceased appellant No.1 on record is pending, he filed another application on 18.08.2008, for seeking deletion of name of appellant No.1 Umar Khan under wrong impression. Learned counsel for appellants submits that order dated 26.08.2008, allowing to delete the name of deceased appellant No.1 has no adverse implications on the merits of appeal, in view of application No.15484 dated 18.03.2003, which is pending on record and has not been decided so far. Learned counsel for respondents could not dispute the factum of filing application No.15484 dated 18.03.2003 and the same is yet pending and no order on that application has been passed. 7. In view of above, with consent of counsel for both parties, matter has been heard on the applications dated 18.03.2003, filed by and on behalf of appellants. 8. Learned counsel for respondents could not dispute the factum of filing application No.15484 dated 18.03.2003 and the same is yet pending and no order on that application has been passed. 7. In view of above, with consent of counsel for both parties, matter has been heard on the applications dated 18.03.2003, filed by and on behalf of appellants. 8. A perusal of application indicates that it has been contended that appellant No.1 Umar Khan died during course of first appeal and out of his successors, named in Para No.2 of the application comprising wife, 5 daughters and one son; his wife and 5 daughters have executed a registered relinquishment deed in respect of lands purchased by Umar Khan through registered sale deed dated 20.08.1981 in favour of appellant No.2/defendant No.2 Amar Singh and therefore, property rights have been devolved upon appellant/defendant No.2 Amar Singh. A copy of registered relinquishment deed dated 07.11.1997 has been placed on record along with application. It has been stated in the application that in view of execution of the registered relinquishment deed by the legal heirs of deceased Umar Khan, only surviving son namely Ibrahim may be substituted in place of deceased appellant and since right to continue the first appeal survives by the appellant No.2 as well, proceedings may be continued on merits. In respect of delay, reasons have been assigned in another application under Section 5 of the Limitation Act. 9. It is not in dispute that present appeal came to be dismissed in default vide order dated 30.04.1992 and the same came to be restored vide order dated 07.09.2001. Appellant No.1 Umar Khan died in the meanwhile on 13th December 1996. The Coordinate Bench of this Court while allowing the restoration of first appeal vide order dated 07.09.2001, has given reasons that the then counsel for appellants, has passed away and therefore, due to want of knowledge to appellants, they could not take necessary steps during that period. After restoration of appeal, application in respect of death of appellant No.1 Umar Khan has been filed on 18.08.2003. As per the application, the rights survived to the legal representatives of deceased appellant No.1 Umar Khan have been substantially transferred to appellant No.2 Amar Singh through registered relinquishment deed dated 07.11.1997 and prayer has been mad to substitute son of deceased appellant No.1 on record. As per the application, the rights survived to the legal representatives of deceased appellant No.1 Umar Khan have been substantially transferred to appellant No.2 Amar Singh through registered relinquishment deed dated 07.11.1997 and prayer has been mad to substitute son of deceased appellant No.1 on record. The relinquishment deed dated 07.11.1997 though has been denied and disputed by respondents, but has not been challenged. 10. In such view of matter, this Court is of prima facie opinion that the legal rights of wife and 5 daughters of deceased appellant No.1 Umar Khan have devolved upon the appellant No.2 Amar Singh by virtue of execution of relinquishment deed dated 07.11.1997 and as far as his surviving son Ibrahim is concerned, he may be allowed to be substituted in place of deceased appellant No.1. Since the issue involved in the present first appeal pertains to the legal rights of parties in respect of immovable property and intricate questions of law and fact are involved, therefore, in overall facts and circumstances and to secure ends of justice, this Court is of considered opinion that the delay in filing application dated 18.03.2003 deserves to be condoned and application No.15484 deserves to be allowed, so that the first appeal may be heard and decided on merits. Therefore, without going into the technicalities, this Court allowed both applications dated 18.03.2003 and as a result the son of deceased appellant No.1 is allowed to be substituted as appellant No.1/1 in place of deceased appellant No.1. Amended cause title be filed accordingly. 11. In view of allowing the pending application No.15484 dated 18.03.2003, the order dated 20th August 2008 passed by the Coordinate Bench allowing the deletion of the name of deceased appellant No.1 Umar Khan becomes insignificant and ineffective. There is no adverse effect on merits of the present appeal due to death of appellant No.1. 12. Accordingly, the application stands disposed of. 13. While going through the record of trial court, it has transpired that during the intervening period when this appeal was not on board and not pending before this Court (1992-2001), part of record of the trial Court, pertaining to statements of witnesses and documents exhibited (Part C & D) have been weeded out by the trial court and only original record relating to part of pleadings of parties, issues and the impugned judgment, is available on record. 14. 14. Learned counsel for both parties, have offered and suggested that they will provide the relevant record of the part relating to evidence and exhibited documents which are in their power and possession in order to facilitate this Court to hear the present first appeal on merits. Therefore, in the interest of justice and to secure the ends of justice, this Court permits learned counsel for both parties to produce on record the photocopies of the relevant record of trial court pertaining to statements of witnesses and exhibited documents within a period of two weeks. 15. Registrar (Judicial) shall prepare a duplicate record on the basis of papers presented by learned counsel for both parties and shall submit his report on the file. 16. Since the appeal is more than 30 years old, the needful be done expeditiously and list the appeal on 28th April 2023 in "supplementary list".