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TARA SINGH & ANR versus DATO & ORS

High Court of Punjab and Haryana, Chandigarh

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Tara Singh & Anr v. Dato & Ors - RSA-1723-1980 [2006] RD-P&H 4303 (18 July 2006)

RSA No. 1723 of 1980 (1)

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

RSA No. 1723 of 1980

Date of Decision: 12.7.2006

Tara Singh and another ...Appellants

Versus

Smt. Dato and others ....Respondents

Coram: Hon'ble Mr. Justice Hemant Gupta.

Present: Shri Shailender Sharma, Advocate, for the appellants.

Shri Munishwar Puri, Advocate, for the respondents.

-.-

JUDGMENT

The plaintiffs are in second appeal aggrieved against the order passed by the learned trial Court on 3.1.1978, dismissing the suit as abated and the order in appeal dated 22.1.1980 affirming the said order.

The plaintiff-appellants filed a suit for declaration to the effect that they are owners in possession of the land described in the plaint. It is asserted that defendant Nos. 1 to 3 acquired land by inheritance from their father Kesar Singh. The said defendants effected a private family partition and the land described under Item No. A in the head note of the plaint fell into the share of Smt. Dato defendant No.1. She conveyed her share of land to the plaintiffs vide registered sale deeds dated 2.6.1954 and 1.12.1954. The plaintiffs thus asserted themselves to be owners and in possession of the suit land. It was pointed out that entry into the revenue record even after inheritance continued to be joint. The mutation of the entire land was not sanctioned in favour of the plaintiffs to the extent of RSA No. 1723 of 1980 (2)

1/3rd

share. On the other hand, defendant Nos. 2 and 3 sold the land fallen to their share in the family partition, to various persons. However, during consolidation in the year 1958, the entire holdings of defendant Nos. 1 to 3 were put into one pool, measuring 508 kanals 4 marlas. After consolidation, the plaintiffs were not delivered possession of the equivalent land purchased by the plaintiffs prior to consolidation i.e. to the extent of 2/3rd share purchased from defendant No.1. It was, thus, claimed that the plaintiffs were entitled to get possession of the land measuring 66 kanals 19 marlas from the land allotted after consolidation, to the defendants.

Defendant Nos. 4 to 44 were impleaded as transferee from defendant Nos. 1 to 3. The said suit was dismissed by the learned trial Court on 13.2.1974 holding that Civil Court has no jurisdiction in view of Section 44 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948. In appeal against the said judgment and decree, the plaintiffs moved an application for impleading legal heirs of Amar Singh defendant No. 32, who died on 15.1.1974. The application to implead the legal heir was filed on 8.8.1975 under Order 22 Rule 4 CPC.

The learned first Appellate Court set aside the judgment and decree passed by the learned trial Court on 12.4.1977 and remanded the case for deciding the question of abatement of suit or substitution of the legal representatives of Amar Singh, deceased.

In terms of the aforesaid order of the first Appellate Court, the matter was considered by the learned trial Court on 3.1.1978. The learned trial Court found that the application for impleading the legal heirs is hopelessly barred by time and it was further found that the deceased defendant was not a proforma defendant. Still further, it was held that since RSA No. 1723 of 1980 (3)

share of Amar Singh in the suit land is not specified, therefore, the suit is abated as a whole. Such finding has been affirmed in appeal as well. Before the first Appellate Court, the appellant relied upon statement of Puran Singh son of Amar Singh deceased, who has deposed that he is the only son of Amar Singh and that he has no interest in the suit land. Inspite of the said statement, the learned first Appellate Court returned a finding that the evidence of the plaintiffs is at variance with the pleadings raised in the plaint and, therefore, the argument that no relief was claimed against Amar Singh nor he was a necessary party, is not tenable. In view of such findings, the learned first Appellate Court upheld the order of abatement of suit.

The following substantial questions of law arise for consideration in the present second appeal:-

1. Whether Amar Singh defendant No. 32 is a necessary party in the suit?

2. Whether there exist circumstances to condone delay in making an application for impleading the legal heirs of deceased Amar Singh?

In respect of first substantial question of law, learned counsel for the appellant has referred to an order dated passed by the learned trial Court on 9.7.1970, whereby exparte proceedings were initiated against defendant No. 32 as no-one had appeared on his behalf despite service. It is alleged that defendant No. 32 has not contested the suit and in view of the statement of his son AW1 Puran Singh, Amar Singh, had no interest in the suit property, but was impleaded only on the basis of the fact that his name appeared in Jamabandi for the year 1966-67 against Khasra No.39/16/2. It is, thus, contended that non impleading of legal heirs of RSA No. 1723 of 1980 (4)

deceased Amar Singh in these circumstances is wholly immaterial and the order dismissing the suit as abated is unjustified and untenable. In fact, Amar Singh is not a necessary party.

The findings recorded by the Courts below that the evidence led in the application for substitution of the legal heirs is at variance with the plaint, is not material for determining the controversy. A perusal of the record shows that Amar Singh was proceeded exparte. He was not, thus, contesting the suit. His son Puran Singh has appeared as a witness (AW1) and deposed that he had no interest in the suit land. It is the case of the appellant in the application to implead the legal heirs of the deceased Amar Singh that Amar Singh was a mortgagee over land measuring 3 kanals and the said land was redeemed by them. On the other hand, the stand of the contesting defendants in the suit is that the vendees from defendant Nos. 2 and 3 are not necessary parties as the share of each co-sharer is subject to adjustment at the time of partition. Thus, it is evident that Amar Singh defendant No. 32 was a proforma defendant as he was not contesting the suit. His son appearing as AW1 on 15.9.1977 has categorically stated that neither he is in possession nor he has any interest in the suit land. Revenue record has not been produced to show that Amar Singh was a vendee from any of the parties to the litigation or has any interest in the land. In the facts now on record, the finding recorded by the Courts below that Amar Singh was a necessary party, is not sustainable. There is nothing on record to show the interest of Amar Singh in the land in dispute. Rather, the statement of his son, leaves no manner of doubt that he was a mortgagee in respect of 3 kanals of land. Even if Amar Singh continues to be mortgagee, it will not affect the question of ownership between the parties. The finding of the RSA No. 1723 of 1980 (5)

Courts below that the plaintiffs themselves have impleaded defendant Nos.

4 to 44 as the transferees from defendant Nos. 1 to 3 would not be sufficient to hold that Amar Singh is owner of any part of the suit property. In the absence of any other document to support such assertion in the plaint, the finding recorded by the Courts below that defendant No. 32 Amar Singh was a necessary party is clearly not sustainable and therefore, is set aside.

In respect of second substantial question of law, it may be noticed that in an application for impleading the legal representative of deceased Amar Singh, it was the case of the plaintiffs that it is not necessary to implead Amar Singh's legal representative as he was a proforma defendant and never contested the suit. It was stated that the application is being moved as an abundant caution. The Courts below have primarily declined to condone delay on the ground that the plaintiffs were aware of the death of Amar Singh as they have attended his cremation as well as Kriya ceremony.

It may be noticed that an amendment was made in Order 22 Rule 4 of the CPC by this Court on 11.4.1975 to the effect that it shall be duty of every Advocate appearing in the case, who becomes aware of the death of a party to the litigation to intimate the Court about the death of that party and to the party who is dominus-litus. Another Rule was inserted to the effect that the duty to bring on record the legal representative(s) of the deceased-defendant shall be of the heirs of the person and not of a person who is dominus-litus. It is, thus, apparent that the intention of rule making Authority was evident that on account of non-impleading of legal representative(s) of deceased defendant, the proceedings should not come to an end summarily. Still further, in Sardar Amarjit Singh Kalra (Dead) by RSA No. 1723 of 1980 (6)

LRs and others Vs. Pramod Gupta (Smt) (Dead) by LRs and others 2003(3) Supreme Court Cases 272, it was held by the Hon'ble Supreme Court as under:-

"26. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. A careful reading of the provisions contained in Order 22 CPC as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination in an effective adjudication and not to retard the further progress of the proceedings and thereby non- suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order 22 are not to be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice." Though the amended provisions of Order 22 Rule 4 CPC may not be strictly extended in the facts of the present case, but keeping in view the intention of the legislature, it is a a case where the parties should contest RSA No. 1723 of 1980 (7)

suit on merits. The circumstances of the case are sufficient cause for condonation of delay in bringing the application for impleading the legal representatives. Therefore, in respect of second substantial question of law, it is held that the plaintiffs have made out sufficient cause for condonation of delay in impleading the legal representatives of deceased defendant No.

32.

In view of the findings recorded above, the orders passed by the Courts below are set aside. While allowing the present appeal with costs of Rs.10,000/-, the matter is remitted to the learned trial Court for decision of the suit on merits, in accordance with law.

Parties through their counsel are directed to appear before the learned trial Court on 18.9.2006 for further proceedings, in accordance with law.

12.7.2006 (Hemant Gupta)

ds Judge


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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