Patna High Court - Orders
Naresh Ram & Ors vs Uma Devi & Ors on 1 April, 2014
Author: Birendra Prasad Verma
Bench: Birendra Prasad Verma
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.507 of 1974
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1. Naresh Ram
2. Mani Ram, both sons of Masudan Kahar
3. Hira Ram son of Baijnath Kahar
4. Srimati Gauri Devi
5. Srimati Chinta Devi
6. Srimati Saroo Devi, daughters of late Digan Kahar.
7. Musmat Mukhia Kaharin wife of late Darbari Kahar (expunged vide
order dated 29.08.1995. Her heirs were already on record as Appellant
no. 8 and 9).
8. Masudan Kahar son of Digan Kahar (expunged vide order dated
09.08.2001. His two sons are already on record as appellant no. 1 and 2 and some are as:
8(i) Chaurasi Devi widow of late Masudan Kahar of village and P.O. Suggi, P.S. and District Jamui.
8(ii) Girja Devi wife of Nago Ram and daughter of Masudan Kahar of village Banodih, P.S. Ratanpur, P.S. Laxmipur, Distt. Jamui. 8(iii) Manju Devi wife of Shankar Ram and daughter of Masudan Kahar of village Mangarer, P.S. and District- Jamui.
9. Baidyanath Kahar alias Bailjnath Kahar son of Digan Kahar.
10. Munshi Kahar son of late Titu Kahar
11. Ghaukal Kahar alias Dhankal Kahar, resident of village- Suggi, P.S. Jamui, District Monghyr (expunged vide order dated 16.05.2000 and his heirs are substituted).
11(i) Pano Devi wife of Ghankal Kahar alias Dhaukal Kahar, 11(ii) Kedar Ram son of late Ghankal Kahar alias Dhaukal Kahar, both residents of village- Suggi, P.S. Jamui, District Monghyr. 11(iii) Bhagwati Devi daughter of Ghankal Kahar alias Dhankal Kahar wife of Krishna Ram, resident of village Chankathiya, P.O. Maura, P.S. Khaira, District Jamui.
11(iv) Daula Devi daughter of late Ghankal Kahar alias Dhankal Kahar wife of Shiv Charan Ram, resident of village- Maulia, P.O. and P.S. Gidhaur, District Jamui.
12. Kashi Kahar son of Munsi Kahar, resident of village- Suggi, P.S. Jamui, District Monghyr.
13. Prayag Kahar son of Munsi Kahar, resident of village Suggi, P.S. Jamui, (expunged vide order dated 25.09.2000 and his heirs are substituted as:
13(a) Daulati Devi, wife of late Prayag Kahar 13(b) Mahendra Ram 13(c) Upendra Ram, both sons of late Prayag Kahar 13(d) Kaili Kumari 13(e) Sabo Devi, wife of Bateshwar Ram, resident of Village- Satgawan, P.S. Jamui, District- Jamui.
13 (f) Sumani Devi, all daughters of late Prayag Kahar, wife of Balmik Ram, resident of Village- Ramapura, P.S. Gidhaur, District- Jamui.
.... .... Plaintiffs---- Appellant/s Versus
1. Parmeshwar Dayal son of Chandi Prasad, resident of village- Suggi, P.S. Jamui, District Monghyr.( Expunged vide order dated 9.8.2001and his heirs are substituted) Patna High Court FA No.507 of 1974 (78) dt.01-04-2014 2/8
(i) Uma Devi wife of Parmeshwar Dayal.
(ii) Vijay Kumar son of late Parmeshwar Dayal
(iii) Vinay Kumar son of late Parmeshwar Dayal
(iv) Shyam Mohan Prasad, son of late Parmeshwar Dayal.
(v) Madan Mohan Prasad son of late Parmeshwar Dayal
(vi) Anandi Prasad, son of late Parmeshwar Dayal
(vii) Nirmala Devi wife of not known and daughter of Parmeshwar Dayal.
(viii) Urmila Devi wife of not known and daughter of Parmeshwar Dayal
(ix) Urvashi Devi wife of not known and daughter of Parmeshwar Dayal All resident of village- Suggi, P.S. Jamui, District Monghyr Jogeshwar Prasad son of Chandi Prasad, resident of village- Suggi, P.S. Jamui, District Monghyr.
2. Jogeshwar Prasad son of Chandi Prasad, resident of village- Suggi, P.S. Jamui, District Monghyr (expunged vide order dated 4.7.2000 and his sole heir was substituted).
2(i) widow (name not known) wife of Jageshwar Prasad, resident of village- Suggi, P.S. Jamui, District Monghyr
3. Jageshwar Prasad son of Chandi Prasad, resident of village- Suggi, P.S. Jamui, District Monghyr
4. Bhuneshwar Prasad son of Chandi Prasad, resident of village- Suggi, P.S. Jamui, District Monghyr.
5. Nageshwar Prasad son of Chandi Prasad, resident of village- Suggi, P.S. Jamui, District Monghyr (expunged vide order dated 3.5.2000 and his heirs are substituted).
5(i) Ashwani Kumar 5(ii) Shailendra Kumar Sinha son of late Nageshwar Prasad, resident of Village Suggi, P.S. Jamui, District Jamui (Expunged vide order dated 3.5.2000 and his heirs are substituted) 5(ii) (i) Name not known.
5(ii)(ii) Dablu Kumar son of Shailendra Kumar Sinha 5(ii) (iii) Tinku Kumar son of Shailendra Kumar Sinha 5(ii)(iii) Muni Devi daughter of Shailendra Kumar Sinha 5(ii) (iv) Chuni Devi daughter of Shailendra Kumar Sinha 5(ii) (v) Banti Kumari daughter of Shailendra Kumar Sinha 5(ii) (vi) Chhoti Kumar daughter of Shailendra Kumar Sinha All residents of village Suggi, P.S. & Distt. Jamui. 5(iii) Birendra Kumar Sinha 5(iv). Rabindra Kumar Sinha, all sons of late Nageshwar Prasad, residents of village Suggi, P.S. Jamui, District Jamui. 5(v)Bachi Devi daughter of late Nageshwar Prasad wife of not known, resident of Mohalla Maharajgan, P.S. Jamui, District Jamui. 5(vi) Suchi Devi daughter of late Nageshwar Prasad, wife of not known, resident of village Suggi, P.S. Jamui, District Jamui.
6. Sidheshwar Prasad son of Chandi Prasad, resident of village- Suggi, P.S. Jamui, District Monghyr
7. Tanku Prasad son of Chandi Prasad, resident of village- Suggi, P.S. Jamui, District Monghyr.
8. Bulu Prasad son of Chandi Prasad, resident of village- Suggi, P.S. Jamui, District Monghyr.(Expunged vide order dated 8.12.2004 and his heirs are substituted as Patna High Court FA No.507 of 1974 (78) dt.01-04-2014 3/8 8(i) Gayatri Devi wife of Bulu Prasad 8(ii) Rakesh Kumar Ranjan son of late Bulu Prasad, both residents of village Kalyanpur, Near Town Hall, P.S. Jamui, District Jamui.
9. Kusheshwar Prasad son of Chandi Prasad, resident of village- Suggi, P.S. Jamui, District Monghyr.
10. Mangni Prasad son of late Ishwar Lall
11. Rajni Prasad son of late Ishwar Lall (Expunged vide order dated 12.02.2014 and his heirs are substituted) 11(i) Arbind Kumar @ Happu son of late Rajni Prasad 11(ii) And Kumar son of late Rajni Prasad, both residents of village Suggi, P.S. and District-Jamui.
12. Bachu Prasad, son of late Ishwar Lall, all residents of village Suggi, P.S. Jamui, District Monghyr .... .... Defendants ----- Respondent/s ====================================================== Appearance :
For the Appellant/s : None.
For the Respondent/s : None.
====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER 78 01-04-2014 The present First Appeal has been filed assailing the validity and correctness of judgment and decree dated 25.05.1974 passed in Title Suit No. 41 of 1964/ 1 of 1974 by the learned Sub-
Judge, Jamui, whereby and whereunder the aforesaid title suit brought by the plaintiffs- appellants herein for a decree of declaration that the plaintiffs are the under-raiyat/ Dar Raiyat with occupancy right over the suit land, mentioned in Schedules-1 and 2 of the plaint, besides other incidental reliefs, was dismissed on contest with costs.
In the aforesaid title suit, the defendant no. 1 to 5 had filed a common written statement and had contested the suit, whereafter by the impugned judgment and decree, the suit in question was dismissed on contest with costs.
In view of dismissal of the First Appeal as against the respondent no. 11(i) and 11(ii) on account of non-compliance of Court's peremptory order dated 07.03.2014, the competency Patna High Court FA No.507 of 1974 (78) dt.01-04-2014 4/8 matter has been placed for consideration with office note dated 28.03.2014.
Despite repeated calls, none appears on behalf of the appellants in support of the present appeal. None appears on behalf of the respondents either, though the names of the learned counsels appearing on behalf of the appellants as also the respondents are printed in the daily cause list.
When this matter was taken up for consideration on 31.03.2014, on that date also none had appeared on behalf of the parties. However, the matter was passed over for the day suo moto by this Court.
This first appeal is pending before this Court since 1974 and since then almost 40 years have already elapsed. On examination of the order sheet of the appeal, this Court finds that for the last several dates neither the learned counsel for the appellants nor the learned counsel for the respondents are appearing in the present first appeal.
Since this appeal is pending before this Court for the last 40 years, therefore, this Court decided to examine the entire record to find out whether the present first appeal can still proceed on merit, despite its dismissal as against the respondent No. 11(i) and 11(ii) on account of non-compliance of Court's order and despite its abatement against the heirs of some of the deceased respondents.
On examination of the record, this Court finds that during the pendency of the appeal, the respondent no.5, who was one of the contesting defendants in the court below, died on 16.04.1991 leaving behind his heirs and legal representatives. A substitution petition was filed on 14.05.1992 on behalf of the Patna High Court FA No.507 of 1974 (78) dt.01-04-2014 5/8 appellants seeking substitution of his heirs and legal representatives. A show cause notice was issued to the proposed heirs of deceased respondent no.5 by order dated 15.02.1996 passed by a Bench of this Court. Subsequently, the process server reported that the proposed respondent no. 5(i) and 5(vi), who were the heirs of deceased respondent no. 5, have also passed away during the pendency of the appeal.
By order dated 01.09.1999, two weeks' final time was granted to the appellants for taking steps for substitution of the heirs and legal representatives of aforesaid proposed deceased respondent no. 5(i) and 5(vi). However, despite aforesaid indulgence granted by this Court, substitution petition was not filed on behalf of the appellants. When this matter was placed for consideration before a Bench of this Court, then by order dated 12.10.1999 further one month's time was granted to the appellants for filing appropriate substitution petition for the aforesaid deceased respondent no. 5(i) and 5(vi). Unfortunately, even this order was not complied with, as a result thereof, by order dated 03.01.2000 it was recorded that the present appeal has stood abated against the heirs and legal representatives of deceased proposed respondent no. 5(i) and 5(vi). Though more than 13 years have already elapsed since then, yet steps have not been taken by the appellants for setting aside the abatement of the appeal with respect to aforesaid deceased respondents.
From perusal of record, this Court further finds that substituted respondent no. 1(vi)- Anandi Prasad died during the pendency of the appeal. I.A. No. 5770 of 2009 seeking substitution of heirs and legal representatives of aforesaid deceased respondent no. 1(vi) also stood rejected on account of Patna High Court FA No.507 of 1974 (78) dt.01-04-2014 6/8 non-compliance of the Court's order dated 29.01.2013 as against proposed respondent No. 1(vi)(A) to 1(vi) (C) and 1(vi)(E). When the aforesaid interlocutory application was placed for consideration on 24.01.2014, with respect to remaining proposed heirs of deceased respondent no. 1(vi) none had appeared on behalf of the appellants in support of the aforesaid I.A. No. 5770 of 2009. Taking into consideration the entire factual background of the case, the aforesaid I.A. No. 5770 of 2009 was finally rejected on 24.01.2014 by this Court.
On examination of record, the office pointed out that respondent no.11- Rajni Prasad died on 16.01.2005 leaving behind him his two heirs. I.A. No.1797 of 2005 filed on behalf of the appellants seeking substitution of heirs and legal representatives of deceased respondent no. 11-Rajni Prasad was allowed by the learned Lawazima Board vide order dated 12.02.2014 and the appeal notice was ordered to be issued to the substituted respondent no. 11(i) and 11(ii), but requisites were not filed by the appellants for issuance of appeal notice to them. Consequently, the matter was placed for consideration before this Bench and by order dated 07.03.2014, the appellants were granted 10 days' further time for filing requisites for issuance of appeal notice upon the respondent no. 11(i) and 11(ii). The order dated 07.03.2014 was peremptory in nature. Unfortunately, even this order has not been complied with, as a result thereof, the appeal stood rejected as against the substituted respondent no. 11(i) and 11(ii).
As stated above, in view of abatement of the appeal as against the heirs and legal representatives of some of the deceased respondents, as mentioned above, and in view of dismissal of the appeal as against respondent no. 11(i) and 11(ii), the competency Patna High Court FA No.507 of 1974 (78) dt.01-04-2014 7/8 matter has been placed for consideration before this Bench by office note dated 28.03.2014.
As noted above, none had appeared on behalf of the parties on 31.03.2014. On matter being called out, none is appearing today also either on behalf of the appellants or on behalf of the respondents. From the facts narrated above, it is apparent that this first appeal stood abated against the heirs and legal representatives of some of the deceased respondents, as mentioned above and it stood dismissed against some of the substituted respondents. It is further apparent that respondent no. 1 and respondent no.5 both were contesting defendants in the court below and the suit was decided in their favour.
It is well settled that the appeal is a continuation of suit/ trial. The abatement of suit/appeal takes place automatically on expiry of statutory period by operation of law on account of non- substitution of the legal representatives of the deceased defendants/ respondents. It is also well settled that law does not permit two contradictory decrees on the same subject matter in the same and common suit/appeal. In view of abatement of the present appeal against the heirs and legal representatives of some of the deceased respondents, as mentioned above, and in view of the dismissal of the appeal against some of the respondents, as mentioned above, the whole appeal has become incompetent and cannot proceed further in view of the law laid down by the Hon'ble Apex Court in the case of Budh Ram vs. Bansi [(2010)11 SCC 476].
For the reasons recorded above, this Court is of the considered opinion that no useful purpose shall be served by keeping the present first appeal pending any longer, as it has Patna High Court FA No.507 of 1974 (78) dt.01-04-2014 8/8 become incompetent and cannot proceed further. If the present appeal is allowed, then there shall be a possibility of contradictory decree with respect to the same subject matter in the same suit/appeal against the deceased respondents vis-à-vis against surviving respondents, which is not permissible in law.
In the result, the appeal, as a whole, has to fail and is, accordingly, dismissed, but there shall be no order as to costs.
(Birendra Prasad Verma, J) BTiwary/-