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[Cites 3, Cited by 1]

Himachal Pradesh High Court

Bhim Dutt & Others vs Ram Krishan Since Deceased Through Lrs on 28 February, 2015

Author: Dharam Chand Chaudhary

Bench: Dharam Chand Chaudhary

    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
                                          RSA No. 246 of 1999.
                          Date of Decision: 28th February, 2015.




                                                                     .
    _______________________________________________________





    Bhim Dutt & Others
                                                             .........Appellants.





                                    Versus
    Ram Krishan since deceased through LRs
                                                           ..........Respondents.

    Coram


    Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
    Whether approved for reporting1? No.

    For the appellants:             Mr. Vinod Gupta, Advocate.

    For the respondents:            Mr. Karan Singh Kanwar, Advocate.
    _________________________________________________________


    Dharam Chand Chaudhary, J. (Oral)

Defendants are in second appeal before this Court. They are aggrieved and dissatisfied by the judgment and decree dated 1.4.1999, passed by learned Additional District Judge, Sirmaur District at Nahan in Civil Appeal No.53-N/13 of 1998. As a matter of fact, learned Additional District Judge vide judgment and decree under challenge while setting aside the Whether reporters of the Local papers are allowed to see the judgment? Yes.

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judgment and decree passed by learned Sub Judge, Rajgarh in Civil Suit No.31/1 of 1998/89 has decreed the .

suit filed by the plaintiff Ram Krishan (since dead) predecessor-in-interest of respondent No.1(a), for the relief of declaration and injunction.

2. The findings that the relief claimed by the plaintiff has arisen from one common transaction and that deceased Sarup Devi having already sold the land to the deceased plaintiff are stated to be erroneous, hence, resulted into miscarriage of justice to the appellants-defendants. Said Smt. Sarup Devi allegedly was a necessary party and the decree for declaration could have not been passed in her absence. The entries in the revenue record showing said Smt. Sarup Devi owner of the suit land were misread and mis-

appreciated. She sold 13.5 bighas of land to appellants-

defendants and even mutation also sanctioned and attested in their names, however, the same has also not been appreciated. Also that the lower appellate Court ::: Downloaded on - 15/04/2017 17:41:18 :::HCHP -3- allegedly failed to appreciate the niceties of law qua non-joinder of parties and necessary parties.

.

3. The appeal has been admitted on the following substantial questions of law:

1) Whether an effective decree for declaration could be passed in the present case without impleading the owner as shown in the record of rights?

            2)
                 r         to
Whether the purchaser who got into possession under an executory contract of sale can in the same breath claim adverse possession and that too without impleading the owner of the land?"

4. In order to adjudicate the above legal questions formulated for consideration in the present appeal, it is desirable to take note of the facts giving rise for filing the present appeal.

5. The suit land has been claimed to be comprised under Khasra No.843 min, 847, total measuring 23.5 bighas under Khata No.25 min, Khatauni No.50 and 51 as per entries in the Jamabandi for the year 1986-87 of Village Rister Panwa, Tehsil Pachhad, ::: Downloaded on - 15/04/2017 17:41:18 :::HCHP -4- District Sirmaur, H.P. The suit land comprised under Khata No.15/35 and 16/36 at the relevant time was sold by Smt. .

Sarup Devi in a sum of `15,000/- to the plaintiff and his brothers defendants No.21 and 22 vide sale deed dated 7th Magh, 2003 B.K. and 20.1.1947 A.D.

6. As per further stipulation in the sale deed in the event of any other property belonging to said Smt. Sarup Devi left to be mentioned in the sale deed was also deemed to have been sold in the above said sale consideration to the plaintiff and his brothers.

Consequently, Smt. Sarup Devi has wrongly and without any right, title and interest sold a portion of the suit land bearing Khasra No.843 min, 847, measuring 13.5 bighas to defendants No.4 and 5.

7. As per further case of the plaintiff the possession of the suit land except Khasra No.843 min, measuring 10 bighas was handed over by Sarup Devi to the plaintiff and defendants No.21 and 22 on 6.5.1943.

He made the reference in this regard to Rapat ::: Downloaded on - 15/04/2017 17:41:18 :::HCHP -5- Roznamcha Vakyati, Ex.PO. The aforesaid land bearing Khasra No.843 min, measuring 10 bighas was allegedly .

exclusively occupied by the plaintiff at that time. Said Smt. Sarup Devi vide Rapat No.131, dated 24.1.1948 appeared before Patwari and reported that she had sold land comprised in Khatas No.15 and 16 in a sum of `15,000/-, however, land entered under Khata No.17 and 24 remained with her which was also agreed to be sold to the plaintiff and defendants No.21 and 22 and Shri Bishan Dutt. Accordingly, mutation No.51 was entered, but could not be attested and sanctioned as she failed to appear before the Assistant Collector and as such was rejected.

8. In the year 1950, defendants No.21 and 22

and their brother Bishan Dutt in oral family arrangement relinquished all their right, title and interest in part of the suit land measuring 13.5 bighas in favour of the plaintiff and admitted him to be exclusive owner in possession thereof. The remaining 10 bighas was continued in his ::: Downloaded on - 15/04/2017 17:41:18 :::HCHP -6- open, peaceful and exclusive possession well within the knowledge of the true owners, hence claims to be .

exclusive owner-in-possession thereof right from 6.5.1943.

He made reference in this regard to long standing revenue entries in the record right from 6.5.1943 to the notice and knowledge of all concerned including the owners. Therefore, he claimed having acquired ownership over 10 bighas of land by way of adverse possession. He, therefore, claims himself to be owner-in-

possession of the entire suit land measuring 23.5 bighas.

Smt. Sarup Devi, therefore, could have not sold the suit land to defendants 4 and 5. He came to know about the sale of suit land measuring 13.5 bighas in the third week of April, 1989 when the said defendants with the help of defendants No.3 and their wives/children started interference therein. He obtained the documents pertaining to this transaction and requested defendants 3 to 5 not to interfere over the suit land, but of no avail, hence the suit for the declaration that he is owner-in-

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possession of the suit land and defendants have no right, title and interest therein and that mutation No.132 .

sanctioned in favour of defendants No.4 and 5 be declared as illegal, wrong and null and void. The decree for permanent prohibitory injunction against the defendants from causing interference over the suit land has also been sought.

9. In written statement defendants No.3 to 5

have raised preliminary objections qua maintainability of the suit, valuation and the suit not maintainable on account of different causes of action. On merits, they denied the entire case as set out in the plaint and pleaded that the suit land was never sold by Smt. Sarup Devi to the plaintiff or his brother defendants No.21 and

22. On the other hand, the same was sold by her to them vide sale deed Ex.PR, in a sum of `15,000/-, but on account of stamp duty only `8,000/- was depicted therein. Besides, they also spent a sum of `5,000/- to carry out improvement therein. Therefore, in additional ::: Downloaded on - 15/04/2017 17:41:18 :::HCHP -8- plea, they have claimed the decree for recovery of `20,000/- the amount the defendants incurred upon the .

owards sale price and improvement of suit land.

10. Another set of defendants, i.e., defendants No.1, 2, 6 to 14 and 16 to 20, in separate written statement filed on their behalf have raised the same preliminary objections and on merits they have also denied the plaintiff's case being wrong and incorrect.

According to them, it is they, who are in possession of the suit land to the extent of their share and the same never remained in possession of the plaintiff or anyone else.

11. On such pleadings of the parties, learned trial Judge has framed the following issues:-

1. Whether Smt. Saroop Devi had sold her entire property of village Rister Panwa to the plaintiff and defendant No.21 and 22, as alleged? If so to what effect? OPP
2. If issue No.1 is not proved, whether plaintiff and defendants No.1 and 21 and 22 have become owner of the suit land by adverse possession? OPP ::: Downloaded on - 15/04/2017 17:41:18 :::HCHP -9- 3. Whether defendants No.21 and 22 relinquished their ownership rights in favour of the plaintiff and plaintiff become the sole .
owner of the suit land? OPP
4. Whether the subsequent sales by Smt. Saroop Devi to defendant No.4 and 5 are null and void and are not binding on the rights of the plaintiff? OPP
5. Whether the revenue entries are wrong and liable to be corrected? OPP
6. Whether the suit is not within limitation? OPD
7. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? If so, what is its value for this purpose? OPD
8. Whether the suit is bad for mis-joinder of cause of action? OPD
9. Whether defendants No.4 and 5 carried out improvements on the suit land? If so, how much and to what effect? OPD
10. Relief.

12. After holding full trial and hearing the parties on both sides, while answering issue No.1, learned trial Judge has held that deceased Sarup Devi had sold her entire property situated in village Rister Panwa, to the ::: Downloaded on - 15/04/2017 17:41:18 :::HCHP

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plaintiff and defendants No.21 and 22 and their brother Bishan Dutt legally and validly. Issue No.2 qua plaintiff .

having become owner of the suit land by way of adverse possession consequently was decided having turned redundant. Subsequent sale of the suit land by said Smt. Sarup Devi in favour of defendants No.4 and 5 was also held null and void while answering issue No.4.

While answering issue No.5 partly in favour of the plaintiff, learned trial Judge has returned the findings that the revenue entries were wrong hence required to be corrected. The claim of the plaintiff that his brothers, defendants No.21 and 22 had relinquished their ownership rights in favour of the plaintiff, however, was not held sustainable while answering issue No.3. The issue No.6 and 7 qua limitation and valuation for the purpose of Court fee and jurisdiction of the suit land were also answered against the defendants.

13. Learned trial Judge, however, has found the suit bad on account of mis-joinder of causes of action ::: Downloaded on - 15/04/2017 17:41:18 :::HCHP

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while returning the findings on issue No.8. Defendants No.4 and 5 were held entitled to the recovery of .

`20,000/- against the plaintiff while answering issue No.9 against them. However, irrespective of the findings that Smt. Sarup Devi had sold her entire property to the plaintiff and his brothers defendants No.21 and 22, the declaration sought in the plaintiff was declined with the following observations:-

"22. The relief of declaration is a discretionary relief and cannot be had as a matter of right. The law of discretion governing granting the declaration is well defined by various judicial authorities. First and the foremost rule is that the court shall not grant the futile declaration. In the present case, the declaration sought for is that the plaintiff is owner in possession of the suit land and sale deed executed by Smt. Saroop Devi in favour of the defendants No. 4 & 5 is null and void and proprietary relief claimed against Smt. Saroop Devi, who has sold the property in favour of defendants No. ::: Downloaded on - 15/04/2017 17:41:18 :::HCHP
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4 & 5 and in her absence the declaration sought for cannot be granted. It was observed in AIR 1930 Calcutta, 693, that the .
absence of necessary party is a good ground comes to refuse declaration. It was observed in AIR 1955, Patna, 1594 (N.U.C.) that where the disputed property not forming part of the tanzi sold under sale deed on the basis of which declaration of title and confirmation of possession was sought in the suit land vendor was not a party that declaration cannot be granted, in absence of the vendor. In the present case also, Smt. Saroop Devi who had sold the property is not before the court and any declaration granted by this court shall not bind her, because as per Section 35 of Specific Relief Act, the declaration will bind the party to suit and no other person.
Therefore, the declaration cannot be granted that Smt. Saroop Devi had sold the property to the plaintiff and that subsequent sale deed executed by her in favour of the defendants No. 4 & 5 is null and void. She never had a chance to contest and put her ::: Downloaded on - 15/04/2017 17:41:18 :::HCHP
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version before the court and obviously cannot be condemned unheard. (Please also see: AIR 1975, S.C. 2079, AIR 1973 .
Madras 185 and AIR 1949, H.P.4). Therefore, in its discretion, the declaration sought for cannot be granted to the plaintiff, as it has already been found that the relinquishment has not been proved. Hence the plaintiff is not entitled for any relief."

14. Aggrieved by the dismissal of the suit by learned trial Court plaintiff Ram Krishan preferred the appeal, which has been allowed by learned lower appellate Court vide judgment and decree under challenge in the main appeal. Irrespective of the findings that Smt. Sarup Devi had sold her entire property to the plaintiff and his brothers vide sale deed Ex. PX, while answering issue No.1 in favour of the plaintiff and the remaining issues except issue No.8 against the defendants No.1 to 20, the declaration as sought was declined by learned trial Court on the premise that Smt. ::: Downloaded on - 15/04/2017 17:41:18 :::HCHP

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Sarup Devi was not arrayed as party in the suit. The respondents-defendants have failed to assail the .

findings on issue No.1 that the sale of the suit land by Smt. Sarup Devi in favour of plaintiff Ram Krishan was legal and valid and for that matter on remaining issues also in an appeal nor preferred cross-objections during the pendency of the appeal preferred by the plaintiff in the lower appellate Court. Therefore, the findings so recorded against the defendants have attained finality.

Learned lower appellate Court has culled out from the record the following three points for consideration:

1. Relinquishment of ownership rights by defendants No.21 and 22 and their brother Bisham Dutt qua suit land measuring 13-5-0 bighas in favour of the plaintiff;
2. mis-joinder of causes of action; and
3. non-joinder of Sarup Devi.

15. Learned lower appellate Court was absolutely justified in pinpointing the aforesaid three questions because the plaintiff-appellant was non-suited ::: Downloaded on - 15/04/2017 17:41:18 :::HCHP

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on this score alone. As regards the defendants, the findings recorded against them had attained finality as .

they opted for not filing an appeal in the lower appellate Court.

16. It is in this background, I have heard Shri Vinod Gupta, Advocate, learned counsel for the appellants-defendants and Shri Karan Singh Kanwar, learned counsel for the respondent-plaintiff on the questions of law formulated in the present appeal and also gone through the evidence available on record.

17. Admittedly, Sarup Devi was owner-in-

possession of the suit land. The old Khata/Khatauni number of the suit land was 16/36 and 15/35. Although old Jamabandi(s) to prove this aspect of the matter has not been produced by either party yet rapat roznamchan vakayati dated 24.1.1948 Ex.PP available on record makes reference of the suit land viz-a-viz, its new number 15 and 16 and also 17 and 24. The reference of Khata No.15/35 and 16/36 also find mention ::: Downloaded on - 15/04/2017 17:41:18 :::HCHP

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in Ex.PX. Its Hindi version is Mark-B. Area whereof as per this document was 33-13-0 bighas and 1-12-0 bighas .

respectively, which was sold by the owner Smt. Sarup Devi to plaintiff and his brothers defendants No.21 and 22 and Bishan Dutt. Learned trial Judge has concluded while answering issue No.1 that Smt. Sarup Devi had sold her entire property in village Ristar Panwa to the plaintiff and his brothers. Such findings being not assailed any further have thus attained finality. When Sarup Devi, aforesaid had sold the land to the plaintiff and his brothers long back on 20.1.1947, obviously she left with no right, title and interest therein. Therefore, she could have not sold the land in question any further to defendants No.4 and 5. Thus for this reason learned trial Court while answering issue No.4 in favour of the plaintiff and against defendants No.4 and 5 has concluded that subsequent sale of the property by Smt. Sarup Devi to defendants No.4 and 5 is null and void. Once learned trial Judge having concluded so there was no other ::: Downloaded on - 15/04/2017 17:41:18 :::HCHP

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option except for decreeing the suit for the relief of declaration as sought in the plaint. The plaintiff could .

have not been non-suited for want of Smt. Sarup Devi as party in the suit. Learned appellate Court, therefore, has not committed any illegality and irregularity while answering Point No.3 supra he formulated in the impugned judgment with the observations:-

"19 This takes me to the third point in regard to the non-joinder of necessary party i.e. Smt. Saroop Devi, the vendor. I do not subscribe to the views of the learned trial Judge that the suit is liable to be thrown out on the basis of non-joinder of the vendor. The reason is simple. It has come on record that Smt. Saroop Devi has already divested herself of her title in the suit land by having sold the same to the plaintiff and defendants No. 21 and 22 way back in the year 1947. She is no more a owner of the same. Rather, under issue No 1, it is conclusively, proved on record that she is neither the owner nor in possession of the same. That apart, the contesting ::: Downloaded on - 15/04/2017 17:41:18 :::HCHP
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defendants No. 2, 3, 4 and 5 also claimed to have purchased right, title and interest in the suit land from her, which purchase, however, .
was found to be invalid under issue No. 4. In either case, Smt. Saroop Devi is no more in the picture. Besides, no relief is being claimed against her. The relief of declaration has been sought against her transferees, who have not taken any objection in their written statement that the suit is bad for want of non-joinder of Saroop Devi to which aspect I would advert a little later. In such a situation, therefore, Smt. Saroop Devi cannot be said to be a necessary party to the suit, nor, the suit is going to be defeated for want of her joining in the same. She may be a proper party, but by no account, she is a necessary party. In Bhagat Ram, appellant v. Teja Singh, respondent, 1964 CLJ (C & Cr) 29, a similar situation arose. The learned counsel for the respondent raised a preliminary objection to the effect that the appeal was not properly constituted. According to him, Indro, who had been arrayed as defendant in the suit ::: Downloaded on - 15/04/2017 17:41:18 :::HCHP
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and who was also a party in the appeal filed before the Ld. lower Appellate Court, has not been made a party in the present .
appeal. His Lordship over ruling the said objections, pointed out that since Indro had no interest in the suit land and it had been purchased by the present appellant, Bhagat Ram, therefore, any decision given in this appeal will have no effect upon the interests of Indro. Therefore, she cannot be said to be a necessary or proper party to the present proceedings.
20. Even, otherwise, also, as already noticed, the contesting defendants who unsuccessfully claimed right, title and interest from Saroop Devi under sale did not take this objection in their written statement that the suit is bad for non-joinder of Saroop Devi.
Needless to say that Order 1 Rule 13, CPC, mandates that all objections on the ground of non-joinder or mis-joinder of parties shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground ::: Downloaded on - 15/04/2017 17:41:18 :::HCHP
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of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived. Rule 9 .
envisages that no suit shall be defeated by reason of misjoinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. Though, it is provided therein that nothing in this rule shall apply to non-joinder of necessary party, but, then, as stated above, such an objection has to be taken at the earliest possible opportunity, which has not been done. It was precisely for this reason that no issue was framed on this point nor any evidence was let in. The Ld. trial court took an opportunity to discuss this point only under relief part. What I want to highlight is that the said plea of objection not having been specifically raised before the trial court, it may not be open for the learned counsel for the defendants to raise such a plea for the first time before the Appellate court. in M/s Rai Chand Dewan Chand v. Shri Audh Bihari Lal Bhatnagar and ::: Downloaded on - 15/04/2017 17:41:18 :::HCHP
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another, 1977, Simla Law Cases, 26, our own High Court expressed a similar view. In that case, an eviction petition was filed under .
Section 13 of the East Punjab Urban Rent Restriction Act. There were four land-lords of the premises and the petition was instituted only by two of them. It was contended by tenants that all the four land-lords should have joined in instituting the petition. The counsel for the land-lords (respondents) urged that the contention should not be entertained in view of the principle incorporated in Order 1 Rule 13, CPC, in as much as objection on the ground of non-
joinder was not taken by the time the issues were settled. Over-ruling the contention of the tenants, it was held by his lordship (Hon'ble R.S. Pathak) that such a plea should not be entertained. It should have been raised during the trial of the eviction application before the controller. There is no dispute that it could have been raised then. Had it been, the respondents would have had an opportunity of meeting it and, if so advised, of removing the defect. It would ::: Downloaded on - 15/04/2017 17:41:18 :::HCHP
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also have been open to the respondent to show that even though four persons were proprietors of the premises and two of them .
alone filed the application the latter were authorized in that behalf by the remaining two. The principle embodied in order 1 Rule 13 is an illustration of the doctrine that a technical objection should not be allowed to defeat the rights of the parties if it is one which, had it been taken at an earlier stage, could have been cured.
21. As against this, a few rulings have been cited by the learned counsel for the defendants, which are Haroo, petitioner v. Man Dass and others, opposite party, AIR(36) 1949 Himachal Pradesh 4 and Rai Harnandan Prasad Singh and others, appellants v. Ghansham Singh and others, respondents, AIR 1955 NUC 1594 (Patna). In my view, both the authorities cannot be pressed into service in the facts and circumstances of the present case. In Haro's case mentioned supra, all that is said is that the court will not entertain a suit in which no ::: Downloaded on - 15/04/2017 17:41:18 :::HCHP
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effective decree can be made in the absence of an interested party. In fact, in that case, a decree of declaration was .
sought regarding a right of way as a village road over the disputed land and for removal of an obstruction thereon, it is held, if it is discovered that a person interested in the servient tenement has not been made a party to the suit or appeal the court will not proceed to make a decree. The decree, if made, must be infructuous. But, our case stands on different footing. As noticed above, Saroop Devi having lost her interest on account of sale could not be said to be a necessary or interested party to the suit for the purpose of the relief of declaration.
Similarly, Rai Harnandan' case, mentioned supra, which is heavily relied upon by the court below, cannot come to the rescue of the defendants. In that case, the plaintiff brought a suit for declaration of title to a certain area of land and for confirmation of possession. The disputed land originally formed part of a tauzi which was divided into two new tauzis Nos. 20023 and 20024.
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The disputed area fell into the new tauzi 20023 which belonged to the defendants. The balance of the plot fell into the new .
tauzi 20024. The basis of the claim as stated in the plaint was that the suit land formed part of tauzi No. 20024 which was sold to them. When they were unable to establish that case and it was held that the disputed land in fact formed a part of tauzi No. 20023 the plaintiffs set up a new case that in spite of the fact that the disputed land fell into tauzi No. 20023 at the partition, their vendor had acquired occupancy rights by contriving to obtain possession of the disputed land and to remain in possession of it until the transfer and that he intended to transfer that right by the sale and that the plaintiffs intended it to form a part of their purchase. In such a situation, it was held that the plaintiffs could not be allowed to prove the new case set up by them in view of illustration (c) to the Section 92 of Indian Evidence Act as by it they claim that the deed which on its face showed that the Tauzi No. 20024 was sold in fact included an ::: Downloaded on - 15/04/2017 17:41:18 :::HCHP
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occupancy right which their predecessors had acquired in a part of tauzi No. 20023 and that their transferer intended this .
occupancy right to pass by the deed.
22. In any event, the suit cannot be said to be bad for non-joinder of Saroop Devi as concluded by the trial court in its relief portion of impugned judgment. Obviously, therefore, the findings of the learned trial court on all these issues being unsustainable are liable to go. Hence this point is decided in favour of the plaintiff and against the defendants."

18. I am in full agreement with the findings that Smt. Sarup Devi was not a necessary party in the suit and as such the suit cannot be said to be bad on account of her non-joinder more particularly when no objection to this effect was raised by either set of defendants.

Therefore, I find no force in substantial question of law No.1 formulated for consideration in the present appeal.

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19. Interestingly enough, the plea of adverse possession as raised by the plaintiff in the plaint does not .

arise at all particularly when the plaintiff has been held to have purchased the suit land find mentioned in the sale deed Ex.PX, and also the other land belonging to Sarup Devi situated in village Rister Panwa by learned trial Court. Not only this, but issue No.2 regarding the plaintiff having become owner of the suit land by way of adverse possession, has been answered having turned redundant. Meaning thereby that the plaintiff has not been granted any benefit of the plea of adverse possession he raised in the plaint. He along with his brother, rather has been found to have purchased the land as mentioned in sale deed Ex.PX and also other property belonging to Sarup Devi in village Rister Panwa even if not find mentioned in the sale deed. The second legal question, therefore, not at all arises for consideration in the present appeal. These are the only ::: Downloaded on - 15/04/2017 17:41:18 :::HCHP

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two questions of law formulated in the present appeal at the time of its admission.

.

20. In view of what has been stated hereinabove, no question of law what to speak of substantial questions of law as formulated in the present appeal arises for consideration by this Court nor the judgment and decree under challenge can be said to be perverse in any manner whatsoever. The same rather being legally and factually sustainable deserves to be affirmed. This appeal, therefore, fails and the same is accordingly dismissed. The parties are, however, left to bear their own costs. The decree sheet be prepared accordingly.







    February 28, 2015                (Dharam Chand Chaudhary),
       (ps)                                   Judge.




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