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Himachal Pradesh High Court

Sh. Ajit Singh Son Of Sh. Bidhi Chand vs Sh. Mukhtiar Singh Son Of Sh. Bidhi Chand on 18 November, 2016

Author: P.S.Rana

Bench: P.S.Rana

           IN THE HIGH COURT OF HIMACHAL PRADESH




                                                                       .
                           SHIMLA:





                                   Civil Revision No. 74 of 2015.

                                   Order reserved on:23.9.2016.





                         Date of Order: November 18,2016.
    ____________________________________________________________




                                             of
    Sh. Ajit Singh son of Sh. Bidhi Chand.

                                   .....Revisionist/Co-defendant No.2..

                   rt              Vs.

    Sh. Mukhtiar Singh son of Sh. Bidhi Chand.

                                            ...Non-revisionist/Plaintiff.



    Coram:



    Hon'ble Mr.Justice P.S.Rana, Judge.

    Whether approved for reporting1?yes.




    For revisionist:               Mr.R.R.Rahi Advocate.





    For Non-revisionist.           Ms. Kiran Lata Sharma, Advocate.





    P.S.Rana, Judge.

    ORDER:

Present revision petition is filed under Section 115 of code of civil procedure 1908 against order of learned District Judge Hamirpur HP dated 19.2.2015 passed in civil miscellaneous appeal No. 23 of 2014 whereby learned Whether reporters of the Local papers are allowed to see the judgment?yes.

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District Judge Hamirpur set aside order of learned Trial .

Court dated 27.9.2014 and partly allowed appeal with direction to parties to maintain status quo with regard to nature and alienation of suit land till final disposal of main suit on merits.

of BRIEF FACTS OF CASE:

2. Sh. Mukhtiar Singh plaintiff filed suit under section 77 of Registration Act 1908 for declaration to the effect that Will rt dated 15.1.2008 executed by late Sh. Bidhi Chand father of plaintiff Mukhtiar Singh and co-defendant No.2 Ajit Singh is valid Will and same is liable to be registered under Registration Act 1908. Consequential relief of permanent prohibitory injunction also sought restraining co-defendant No.2 Ajit Singh from dis-possessing plaintiff from suit land and alienating the land and changing the nature of land comprised khata No. 41 khatauni No. 52 khasra No. 49, 50, 67, 75, 1076/98, 144, 145, 150, 1097/273, 432 and 867 kitas 11 measuring 20 kanals 4 marlas situated in village Beer tappa Beer Baghera Tehsil Sujanpur District Hamirpur HP. Additional relief for mandatory injunction also sought directing Sub Registrar Sujanpur District Hamirpur HP to register Will dated 15.1.2008.

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3. Per contra written statement filed on behalf of .

co-defendants No. 2 and 3 pleaded therein that plaintiff has got no cause of action and plaintiff has got no locus standi to file present suit. It is pleaded that plaintiff is estopped from filing suit by his own act and conduct. It is pleaded that suit of is bad for want of necessary parties. It is pleaded that suit is not legally maintainable for declaration as the plaintiff is out of possession over suit land. It is pleaded that suit is not rt properly valued for the purpose of court fee and jurisdiction.

It is pleaded that suit property is self acquired property of deceased Bidhi Chand son of Daulat Ram. It is pleaded that Bidhi Chand has not executed any Will on 15.1.2008. It is pleaded that suit is hit by principle of resjudicata under section 11 CPC and under order 2 rule 2 CPC. It is pleaded that defendants are entitled to special cost under section 35A CPC. It is pleaded that former civil suit No. 16 of 2008 titled Mukhtiar Singh Vs. Ajit Singh was filed by plaintiff before civil Court in which both Wills dated 15.1.2008 and 18.5.2007 were directly and substantially in dispute. It is pleaded that civil suit No. 16 of 2008 titled Mukhtiar Singh Vs. Ajit Singh was dismissed in default by learned Civil Judge (Junior Division) Court No. 3 Hamirpur HP on dated ::: Downloaded on - 15/04/2017 21:34:26 :::HCHP 4 23.1.2009. It is pleaded that interim application filed under .

order 39 rules 1 and 2 CPC was also dismissed. It is pleaded that CMA No. 47 of 2008 titled Mukhtiar Singh Vs. Ajit Singh was also filed before learned District Judge Hamirpur and same was also dismissed in default on 24.3.2009. It is of pleaded that fresh present civil suit on the basis of Will dated 15.1.2008 is not maintainable.

4. During pendency of civil suit No. 119 of 2014 rt Mukhtiar Singh plaintiff filed application under order XXXIX rule 1 and 2 CPC for grant of ad-interim injunction. Learned Trial Court dismissed application filed under order XXXIX rule 1 and 2 CPC by plaintiff. Feeling aggrieved against order of learned Trial Court plaintiff Mukhtiar Singh filed appeal under order XLIII CPC. Learned Appellate court partly accepted appeal and set aside order of learned Trial Court dated 27.9.2014. Learned Appellate court directed parties to maintain status quo with regard to nature and alienation of suit land till final disposal of main suit on merits. Feeling aggrieved against order of learned Appellate court revisionist filed present revision petition.

5. Court heard learned Advocate appearing on behalf of revisionist and learned Advocate appearing on ::: Downloaded on - 15/04/2017 21:34:26 :::HCHP 5 behalf of non-revisionist and also perused entire record .

carefully.

6. Following points arise for determination in present revision petition:

1. Whether revision petition filed under section 115 of code of civil procedure 1908 by revisionist of is liable to be accepted as mentioned in memorandum of grounds of revision petition?.

2. Relief.

rt Findings upon point No.1 with reasons:

7. Submission of learned Advocate appearing on behalf of revisionist that non-revisionist has earlier filed civil suit No. 16 of 2008 titled Mukhtiar Singh Vs. Ajit Singh which was dismissed in default on dated 23.1.2009 in which two Wills i.e. Will dated 18.5.2007 and 15.1.2008 were directly and substantially in issue and subsequent civil suit No. 119 of 2014 is barred on the concept of resjudicata under section 11 CPC and under order II rule 2 CPC is rejected being devoid of any force for reasons hereinafter mentioned. It is proved on record that two Wills dated 18.5.2007 and dated 15.1.2008 were in dispute in civil suit No. 16 of 2008 titled Mukhtiar Singh Vs Ajit Singh. It is proved on record that Civil Judge did not dispose of civil suit ::: Downloaded on - 15/04/2017 21:34:26 :::HCHP 6 No. 16 of 2008 on merits but civil suit No. 16 of 2008 was .

dismissed in default. It is also proved on record that learned District Judge did not dismiss civil appeal No. 47 of 2008 on merits but dismissed the appeal in default. It is held that when civil suit is dismissed in default then provision of of resjudicata would not apply in subsequent civil suit when subsequent civil suit is filed upon different cause of action and title. See AIR 1993 SC 1756 Inacio Martins Vs. Narayan rt Hari Naik. See AIR 1976 SC 1645 Lonakutty Vs. Thomman and another. See AIR 1960 SC 941 Satyadhyan Ghosal and others Vs. Smt. Deorajin Debi and another.

8. Submission of learned Advocate appearing on behalf of revisionist that non-revisionist filed application for registration of Will dated 15.1.2008 before learned Sub Registrar under Registration Act 1908 and application of non-revisionist was dismissed by learned Sub Registrar on dated 15.2.2011 and thereafter appeal was filed by non-

revisionist before learned Registrar and same was also dismissed by learned Registrar on dated 23.7.2014 and on this ground revision petition be allowed is rejected being devoid of any force for reasons hereinafter mentioned.

Registration Act 1908 is special Act. As per section 18 E of ::: Downloaded on - 15/04/2017 21:34:26 :::HCHP 7 Registration Act 1908 registration of Will is optional. As per .

section 77 of Registration Act 1908 suit can be filed before civil court against order of refusal of registration by learned Registrar. Present civil suit No. 119 of 2014 is filed under section 77 of Registration Act 1908 upon different cause of of action and upon different title.

9. As per section 59 of Indian Succession Act 1925 every person of sound mind not being a minor may dispose rt of his property by way of Will. It is well settled law that Will are of two types (1) Privileged Will as defined under section 65 of Indian Succession Act 1925 and un-privileged Will as defined under section 63 of Indian Succession Act 1925. It is well settled law that privileged Will is always executed by soldier being employed in an expedition or engaged in actual warfare.

10. Court is of the opinion that in order to avoid multiplicity judicial proceedings inter se parties it is expedient in the ends of justice to direct both parties to maintain status quo as of today qua nature and possession of suit property till disposal of civil suit No. 119 of 2014. It is well settled law that in revision proceedings High Court cannot reverse the order of subordinate court unless order of ::: Downloaded on - 15/04/2017 21:34:26 :::HCHP 8 subordinate court is perverse. See AIR 1991 SC 455 .

Masjid Kacha Tank Nahan Vs. Tuffail Mohammed. See AIR 1969 SC 580 Indore Municipality Vs. K.N.Palsikar. See AIR 1995 SC 1357 P.Udayani Devi Vs. V.V.Rajeshwara Prasad Rao. See AIR 2002 SC 1004 Gurdial Singh Vs. Raj Kumar of Aneja. In view above stated facts and case law cited supra it is held that order of learned District Judge Hamirpur HP dated 19.2.2015 announced in civil miscellaneous appeal No. rt 23 of 2014 is not perverse. Point No.1 is answered in negative.

Point No.2 (Relief).

11. In view of findings upon point No.1 revision petition is dismissed. Parties are left to bear their own costs.

Observations will not effect merits of civil suit in any manner. File of learned Trial Court and learned Appellate Authority along with certify copy of order be sent back forthwith. Parties are directed to appear before learned Trial Court on 5.12.2016. Revision petition is disposed of.

Pending application(s) if any also disposed of.

(P.S.Rana) Judge.

November 18,2016(R).

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