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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CHANDER BHUSAN BAROWALIA, J.
Khem Singh Son of Shri Devi Ram – Appellant
Versus
Shri Bhim Singh Son of Shri Kalu Ram – Respondent
Regular Second Appeal No.56 OF 2013
Decided on : 10-11-2021
Civil Procedure Code,1908 – Section 151 Order 41 Rule 27 - Evidence Act – Section 50 – Land - Suit for declaration - Original plaintiff, maintained a suit for declaration and injunction against respondents-defendants alleging that late father of original plaintiff was owner-in-possession of land and which was previously in possession of late one as non-occupancy tenant under previous owner and others, plaintiff along with his two brothers came in possession of suit land after death of said one - Similarly, other land of late one was also possessed by said one as a tenant and after his death plaintiff and his two brothers came into possession of the same- He died and after his death suit land was inherited by plaintiff and his two brothers - Plaintiff and his two brothers were minor and mother of plaintiff soon after death of her husband settled in the house of one - Since the plaintiff and his brothers were minors they were also taken by their mother to house of said one and brought up there - After the death of the father of the plaintiff, mutations qua inheritance of said one were attested in favour of the plaintiff, his brothers and one - Whether the learned Additional District Judge (FTC) has erred in not deciding application under Order 41 Rule 27 CPC? – Held, It is settled law that when a party approaches Appellate Court with an application under Order XLI, Rule 27 of the Code of Civil Procedure, then application has to be decided one way or other by Appellate Court and the same cannot remain undecided on Court record, because none can say as to what would have been the effect of decision of the same on final judgment, if application was allowed by Court - In this case, by not deciding this third application filed under Order XLI, Rule 27 of Code of Civil Procedure, learned First Appellate Court has committed a material irregularity, which renders judgment and decree passed by it nonets in eyes of law - It is again reiterated that this Court is not suggesting as to what order should have been passed on the said application by the learned First Appellate Court and all that this Court is laying stress upon is that once this application was on record, learned First Appellate Court was duty bound to decide it - In view of the aforesaid discussions, substantial question of law, is answered holding that learned First Appellate Court is required to decide an application, under Order 41 Rule 27 CPC on one way or the other - Instant appeal is allowed.
JUDGMENT :
1. By way of the present regular second appeal, appellants have challenged the judgment and decree passed by the Court of learned Additional District Judge (Fast Track Court) Mandi, District Mandi, in Civil Appeal No.101 of 2009, dated 1.12.2012, vide which, the learned First Appellate Court, has affirmed the judgment and decree passed by the learned Civil Judge (Junior Division), Chachiot at Gohar, District Mandi, in Civil Suit No.64 of 2003, dated 22.8.2009.
2. Material facts necessary for adjudication of the instant appeal are that the original plaintiff, Shri Devi Ram (hereinafter referred to as ‘ the original plaintiff’) maintained a suit for declaration and injunction against the respondents-defendants (hereinafter referred to as ‘defendants’) alleging that late Shri Nokhu father of the original plaintiff was owner-in-possession of the land comprised in Khata/Khatauni No.10/23, Kittas 56, measuring 65-8-14 bighas, situated at village Ghayan, H.B. No.101, Illaqua Kohalu, Tehsil Chachiot, District Mandi, H.P and land comprised in Khewat Khatauni No.38/65, Kita 13 measuring 2-15-3 bighas, situated at village Kado, H.B No.99, Tehsil Chachiot District Mandi, (hereinafter referred to as ‘suit land’) which was previously in possession of late Nokhu Ram, as non-occupancy tenant under the previous owner Amar Singh and others, the plaintiff alongwith his two brothers Chet Ram and Balak Ram came in possession of the suit land after the death of Nokhu Ram. Similarly, the other land of late Nokhu situated in muhal Drahal No.H.B.97 was also possessed by Nokhu, as a tenant and after his death the plaintiff and his two brothers came into possession of the same. Nokhu Ram, died in the year, 1950 and after his death the suit land was inherited by the plaintiff and his two brothers. The plaintiff and his two brothers namely, Chet Ram and Balak Ram, were minor and mother of the plaintiff soon after the death of her husband Nokhu settled in the house of one Kalu Ram. Since the plaintiff and his brothers were minors they were also taken by their mother Smt. Kala Devi to the house of Kalu Ram and brought up there. After the death of the father of the plaintiff in the year 1950, mutations No.95, 178 and 201 qua inheritance of Nokhu were attested in favour of the plaintiff, his brothers and one Saju. At the time of attestation of aforesaid mutations, the plaintiff and his brothers were minors and Kala introduced the plaintiff and his two brothers with defendant No.1 as their real brothers. Taking undue advantage of the wrong revenue entry in the name of Saju, the defendant in the year 1996, came to the plaintiff and represented that he was unable to watch and ward the landed property recorded in the name of Saju and intend to appoint the plaintiff, as his General Power of Attorney. The mutation in the name of Saju was wrong, illegal, void ab-initio having no effect upon the right of the plaintiff and his two brothers.
3. The case of the plaintiff was resisted and contested by defendant No.1 by filing written statement and taking preliminary objections that the suit is not maintainable, plaintiff is estopped by his act and conduct from filing the present suit, suit is barred by limitation and suit is not properly valued for the purpose of Court fee and jurisdiction. On merits, it is denied that after the death of Nokhu his landed property was inherited and possessed by the plaintiff alongwith Chet Ram and Balak Ram. As a matter of fact, after the death of Nokhu his entire landed property was inherited by his four sons. It is admitted that Nokhu died in the year 1950 and Kala was legally wedded wife of Nokhu. In fact, Kala Devi had given birth to four sons from the loins of Nokhu and the replying defendant was in the womb of his mother, when his father Nokhu has expired and defendant born after three months from the date of death of Nokhu. His name, as Saju, was got entered in the record of Patwari by his grand mother.
4. Feeling aggrieved
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