Himachal Pradesh High Court
Maya Ram vs Lajja Devi And Others on 15 June, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 99 of 2005 Date of decision: 15.6.2016 .
Maya Ram. ...Appellant
Versus
Lajja Devi and others. ...Respondents
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1No.
of For the Petitioner: Mr. G.R. Palsra, Advocate.
For the Respondents: rt Mr. Sanjeev Kuthiala, Advocate, for respondents No. 1(a) to 1(d).
Tarlok Singh Chauhan J. (Oral).
Looking to the nature of the order I propose to pass, it is not relevant to set out the facts in detail, suffice it to state that the appellant/plaintiff had filed a suit for declaration, which was dismissed by the learned trial Court and the appeal filed against the same was also dismissed by the learned Presiding Officer, Fast Track Court, Mandi.
2. One of the fact which weighed with the learned lower Appellate Court to dismiss the appeal was that the plaintiff had not impleaded the legal heirs of Bajir Chand and Sukh Ram in the suit and as the plaintiff was seeking declaration, the same could not, therefore, be granted in his favour in their absence, as the grant of relief of declaration would adversely affect Bajir Chand and Sukh Ram or their successors, who are recorded as occupancy tenants in the suit land.
3. At this stage, it shall be apt to reproduce paras 28 and 29 of the judgment rendered by the learned lower Appellate Court, which reads thus:-
"28. The perusal of the record of Ld. trial Court reveals that the plaintiff has no where impleaded Bazir Chand and Sukh Ram as party in the suit and even in the judgment and decree of the Ld. trial Court the name of Bazir Chand and Sukh Ram are not mentioned. Hence, the plea of the appellant that he has impleaded Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/04/2017 20:35:22 :::HCHP 2 Bazir Chand and Sukh Ram who died during the pendency of the suit and thereafter he has impleaded the legal heirs of Bazir Chand and Sukh Ram in the suit is not substantiated or corroborated on the basis of the material on record.
29. Since, the plaintiff is seeking declaration that the suit land is owned and .
possessed by the plaintiff and the revenue entries to the contrary are wrong, illegal, null and void, no relief of declaration as sought by the plaintiff can be granted in favour of the plaintiff in the absence of Bazir Chand and Sukh Ram as granting relief of declaration as sought by the plaintiff is going to adversely effect interest of Bazir Chand and Sukh Ram or their successors who are recorded as occupancy tenants in the suit land. The granting of the relief as sought by the of plaintiff implies that the entries showing Bazir Chand and Sukh Ram as occupancy tenants will be deleted from the revenue record as the plaintiff will be recorded in possession of the suit land and in such manner the valuable rights which has been accrued in favour of Bazir Chand and Sukh Ram as occupancy rt tenants will be taken away without any notice to them or without giving any opportunity to them of being heard."
4. The matter was argued at length on various dates and Mr.G.R. Palsra, Advocate would submit that the legal heirs of Sh. Bazir Chand and Sukh Ram had in fact been brought on record, but the record attached with the case file did not reflect the same. It then transpired that at an earlier stage, the case had been remanded by the learned lower Appellate Court and it was then that this Court vide its order dated 11.5.2016 requisitioned the records of Civil Appeal No. 1 of 1992 from the Court of learned District Jude, Mandi.
5. The records of Civil Appeal No. 1 of 1992 if adverted to would reflect that the plaintiff on 3.12.1993 had filed an application under Order 1 Rule 10 C.P.C. for bringing on record legal representatives of deceased Sukh Ram, who was stated to have died, as also arraying Sh.Bazir Chand as party. This application came up for consideration before the learned lower Appellate Court on 21.1.1994 and the following order came to be passed:-
"Heard. In view of the recorded entries in the revenue record in the names of Bajir Chand and deceased Sukh Ram, the application U/O 1 Rule 10 CPC is allowed to avoid later implications. So let Bajir Chand and LRs of Sukh Ram be impleaded as defendants and amended head note of appeal be filed on 11.2.94. The application is thus allowed subject to Rs.50/- as costs."::: Downloaded on - 15/04/2017 20:35:22 :::HCHP 3
6. In light of this order, the findings rendered by the learned lower Appellate Court are palpably wrong and contrary to the records of the case.
Needless to observe that the appeal had primarily been dismissed only on the .
premise that Bazir Chand and Sukh Ram have not been impleaded as party, which finding, as observed earlier is contrary to the record. Thus, the judgment and decree as passed by the learned lower Appellate Court is not sustainable in the eyes of law and is accordingly set aside. The case is of remanded back to the learned lower Appellate Court for decision afresh.
7. As, the suit was instituted more than 25 years ago i.e. on rt 13.11.1990, the learned lower appellate Court is requested to decide the case expeditiously and in no event later than 31st December, 2016. The parties are directed to appear before the learned lower Appellate Court on 8th July, 2016.
The records be sent back forthwith.
(Tarlok Singh Chauhan), Judge.
15th June, 2016 (KRS) ::: Downloaded on - 15/04/2017 20:35:22 :::HCHP