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2015 Supreme(HP) 1069
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
P.S. Rana, J.
Chet Ram son of Shri Ram Dittu - Appellant/Plaintiff
Versus
Brij Lal son of Shri Achru Ram & others - Respondents/Defendants
RSA No. 62 of 2003
Decided on :17-9-2015
Advocate Appeared:
For the Appellant:Mr. Janesh Gupta, Advocate.
For Respondents Nos. 1 to 5:Mr. Vivek Thakur, Advocate.
For Respondents Nos. 6 to 12: None.
The main legal point established in the judgment is the legal obligation to implead a necessary person as a co-party in a suit, even if objections are not raised by the contesting party, when the presence of parties before the court is necessary to enable the court to effectively and completely adjudicate and settle all questions involved in the suit.
Headnote:
Code of Civil Procedure - Second Appeal - Section 100 - Suit for declaration of ownership and possession of land - Dispute over shares of suit land - Issue of civil death of a co-owner - Impleadment of necessary party - Interpretation of Section 107 and 108 of Indian Evidence Act 1872 - Application of Order 1 Rule 10(2) of Code of Civil Procedure 1908 - Legal principles governing declaratory suits - Effect of non-impleadment of necessary party on passing an effective decree
Fact of the Case:
The plaintiffs filed a suit for declaration of ownership and possession of land, claiming to be joint owners in possession of a certain share of the land. The defendants contested the suit, disputing the ownership and possession claimed by the plaintiffs and raising issues of maintainability, time-bar, and estoppel. The trial court held in favor of the plaintiffs, but the first appellate court ruled in favor of the defendants, holding that the plaintiffs were not legal heirs of a deceased co-owner and were not entitled to succeed to the deceased co-owner's share in the land.
Finding of the Court:
The High Court found that the non-impleadment of the deceased co-owner as a necessary party in the original suit was a crucial issue. It held that the failure to implead the deceased co-owner as a party deprived him of the opportunity to be heard and affected the rights of the parties. The High Court set aside the judgments of the lower courts and remanded the case to the trial court with directions to implead the deceased co-owner as a co-defendant and to dispose of the suit in accordance with the law.
Issues: The main issue was the non-impleadment of the deceased co-owner as a necessary party in the original suit, which affected the rights of the parties and the passing of an effective decree.
Ratio Decidendi: The court emphasized the legal obligation to implead a necessary person as a co-party, even if objections were not raised by the contesting party, when the presence of parties before the court is necessary to enable the court to effectively and completely adjudicate and settle all questions involved in the suit. The court also highlighted the application of Order 1 Rule 10(2) of the Code of Civil Procedure 1908 and the legal principles governing declaratory suits.
Final Decision: The High Court set aside the judgments of the lower courts and remanded the case to the trial court with directions to implead the deceased co-owner as a co-defendant and to dispose of the suit in accordance with the law.
P.S. Rana
1. Present regular second appeal is filed under Section 100 of Code of Civil Procedure 1908 against judgment and decree passed by learned District Judge Bilaspur (H.P.) on 27.12.2002 in Civil Appeal No. 95 of 1993 titled Achhru (deceased) through LRs Garja Ram and others vs. Chet Ram and others.
Brief facts of the case
2. Brief facts of the case as pleaded are that Chet Ram and others filed suit for declaration to the effect that plaintiffs are owners in possession of 179/1010 shares of the suit land measuring 50-10 bighas comprised in Khewat No. 36, Khatauni No. 39, Khasra Nos. 12, 14, 21, 25, 29, 30, 38, 39 situated in village Khalsayee Tehsil Ghumarwin District Bilaspur H.P. Plaintiffs have sought consequential relief of permanent prohibitory injunction and plaintiffs have also sought alternative relief of possession. It is pleaded that whereabouts of Jaindu son of Khindoo who has 6/90 shares in suit property is not known for the last 27-28 years. It is pleaded that Jaindu son of Khindoo would be deemed to be civilly dead and his 6/90 shares would devolve upon the plaintiffs being his reversioners. It is pleaded that on 25.8.1988 defendant No.1 threatened plaintiff No.1 that he should not cut the grass from joint land and also not to enter the suit land. It is pleaded that plaintiffs are joint owners in
possession to the extent of 179/1010 shares of suit land measuring 50-10 bighas and defendant No.1 is owner of 294/1010 share and defendants Nos. 2 to 5 are owners of 179/1010 shares and defendant No.6 is owner of 358/1010 shares. Decree of suit as mentioned in relief clause of plaint sought by plaintiffs.
3. Per contra written statement filed on behalf of defendants pleaded therein that suit is not maintainable. It is pleaded that suit is time barred and plaintiffs are estopped from filing the present suit because of their act and conduct. It is pleaded that plaintiffs did not raise any objection during consolidation proceedings. It is pleaded that plaintiffs have taken active part in consolidation proceedings. It is pleaded that entries in revenue record relating to possession of defendant No. 1 are correct. It is pleaded that parties are in settled possession of suit land as per entry in revenue record. It is denied that Jaindu son of Khindoo had civilly died and it is also denied that 6/90 shares of Jaindu son of Khindoo devolves upon the plaintiffs being reversioners. Prayer for dismissal of suit sought.
4. Plaintiffs also filed replication and re-asserted the allegations mentioned in the plaint. As per the pleadings of parties learned trial Court framed following issues on 15.11.1999:-
1. Whether parties to the suit are joint owners in possession over the suit land as alleged? OPP
2. Whether one of the co-sharer Jaindu is not known for about 27/28 years as alleged, if so its effect? OPP
3. Whether defendants are interfering with the share of plaintiffs over the suit land as alleged? ……OPP
4. Whether suit is not maintainable as alleged? …..OPD
5. Whether suit is time barred as alleged? OPD
6. Whether plaintiffs are estopped to file the suit as alleged? OPD
7. Whether suit is not properly valued for the purpose of court fee and jurisdiction as alleged? OPD
8. Relief.
5. Learned trial Court decided issues Nos. 1 and 2 in affirmative and learned trial Court decided issues Nos. 3 to 7 in negative. Learned trial Court held that Jaindu son of Khindoo is civilly dead and shares of plaintiffs have increased proportionately due to civil death of Jaindu son of Khindoo. Learned trial Court further held that share of co-defendant No. 1 is reduced as mentioned in relief clause of judgment.
6. Feeling aggrieved against the judgment and decree passed by learned trial Court deceased Achhru codefendant No. 1 filed civil appeal No. 95 of 1993 which was decided by learned District Judge Bilaspur on 27.12.2002. Learned first Appellate Court accepted the appeal. Learned first Appellate Court held that plaintiffs are not legal heirs of dece
