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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
JYOTSNA REWAL DUA, J.
Gurmeeto Wd/o Jagdish Chand – Petitioner
Versus
Pritam Chand S/o Thunia – Respondent
Civil Misc. Petition Main (Original) No. 294 of 2015
Decided On : 25-10-2021
H.P. Tenancy and Land Reforms Act - Code of Civil Procedure,1908 - Orders 22 and 43, Rules 1 and 4(4) - Constitution of India,1950 - Article 227 - Civil Suit - Seeking exemption to bring on record legal - Claim Property - Tenants - On one hand there will be a decree by trial Court declaring that first defendant was not the adopted son and had no interest in property qua late brother of appellant - On other hand appellate court could be invited to pass a decree which should be to effect that first defendant was found to be adopted son and had right and interest over property and a declaration to that effect would have to be granted - Would not appellate court then have to necessarily hold though decree in favor of deceased brother of appellant has become final and under it a declaration is granted that defendant No. 1 is not adopted son and he has no right to claim property and there is an injunction against him that he is adopted son opposed to decree which has been passed by trial court which has attained finality – Court would think that appellate court would indeed have to refuse to proceed with appeal on basis that allowing appeal by defendants would lead to an appellate decree which is inconsistent with decree which has become final as against deceased brother of appellant - Held, In this case undoubtedly as court have noted appellant and his late brother sued as plaintiffs for a declaration that first defendant was not adopted son and he has no rights - They also sought a prohibitory injunction - On one hand there will be a decree by trial Court declaring that first defendant was not adopted son and had no interest in property qua late brother of appellant - On other hand appellate court could be invited to pass a decree which should be to effect that first defendant was found to be adopted son and had right and interest over property and a declaration to that effect would have to be granted - Would not appellate court then have to necessarily hold though decree in favor of deceased brother of appellant has become final and under it a declaration is granted that defendant No. 1 is not the adopted son and he has no right to claim property and there is an injunction against him that he is the adopted son opposed to decree which has been passed by trial court which has attained finality - Court would think that appellate court would indeed have to refuse to proceed with appeal on basis that allowing appeal by defendants would lead to an appellate decree which is inconsistent with decree which has become final as against deceased brother of appellant - Petition fails and is dismissed.
ORDER :
1. Learned trial court dismissed the suit filed by the present petitioners as having abated. This judgment has been up-held by the learned first Appellate Court. Aggrieved, the plaintiffs have preferred instant petition under Article 227 of Constitution of India.
2. The parties hereinafter are referred to as they were before the learned trial court.
3. Facts:
(a) Land measuring 4 kanal 12 marlas, bearing khewat No. 414, khatauni Nos. 541 and 542, khasra Nos. 1334, 1339 as entered in the jamabandi for the year 1992-93, situate in village Bathu, Sub Tehsil Haroli, Tehsil and District Una has been coming in possession of the plaintiffs as owners to the extent of 20/30 shares and as tenants to the extent of 10/30 shares.
(b) The plaintiffs have become owners of 10/30 shares by operation of H.P. Tenancy and Land Reforms Act.
(c) The revenue entries of suit land in the name of defendants in the revenue record more particularly, in the jamabandi for the year 1992-93 as ‘khud kasht’ are wrong, illegal, null, void, ineffective and have no bearing upon the rights, title or interests of the plaintiffs.
(d) Consequential relief to restrain the defendants from interfering in the plaintiffs’ possession over the suit land was also prayed for.
(ii) Defendant No. 6-Jagdish s/o Basant Ram was proceeded ex-parte in the civil suit vide order dated 1.3.2002. However, on the next date (1.4.2002), power of attorney on behalf of defendants No. 6 and 7 was filed in the court by Shri P.C. Sharma, learned Advocate who prayed time to file written statement on behalf of defendants No. 1, 2, 3, 5, 6 and 7. The prayer was allowed and the matter was fixed for 15.5.2002. On the next date i.e. 15.5.2002 written statement on behalf of defendants No. 1 to 7 was not ready. Learned counsel appearing for these defendants including defendant No. 6 prayed for adjournment to file the written statement. The prayer was not opposed by learned counsel for the plaintiffs and the matter was fixed on 6.8.2002 for filing of written statement. Written statement was not ready even on 6.8.2002. Further time was granted to the defendants No. 1 to 7 to file the written statement The same was eventually filed on 20.9.2002. Some relevant orders mentioned above are extracted hereinafter:
“1.3.2002
Present: Sh. R.C. Seth, Advocate, for the plaintiff.
Sh. R.K. Sharma, Advocate for defendant No. 1, 2, 3 and 5.
Defendant No. 7 in person.
Defendants No. 4, 6, 8 and 9 served but not present. Hence, they are proceeded as ex-parte. Now to come up for on 1.4.2002.
xxx xxx xxx
1.4.2002
Present: Sh. R.C. Seth, Advocate for the plaintiff.
Sh. P.C. Sharma, Advocate for defendants no. 1, 2, 3, 5, 6 and 7.
(Power of attorney of defendants no. 6 and 7 is filed today)
Defendant no. 4 already ex-parte.
Written statement on behalf of defendants No. 8 and 9 is filed. Written statement on behalf of defendants no. 1, 2, 3, 5, 6 and 7 not ready. Adjournment is prayed which is granted. Now to come up on 15.5.2002 for written statement.
xxx xxx xxx
15.5.2002
Present: Sh. R.C. Seth, Advocate for the plaintiffs.
Sh. P.C. Sharma, Advocate for defendants no. 1 to 7.
(Power of attorney on behalf of defendant no 4 is filed today)
None for the defendants no. 8 and 9 despite the fact that they were personally present on the last date of hearing. Hence the case is ordered to be heard as ex-parte against the defendants no. 8 and 9.
Written statement on behalf of defendants no. 1 to 7 not ready. Adjournment is prayed which is granted as not opposed by Ld. for the plaintiffs. Now to come up on 6.8.2002 for written statement.”
(iii) During pendency of the civil suit, defendant No. 6 died on 8.9.2009. On 12.8.2011, the plaintiffs moved an application under Order 22 Rule 4(4) of Code of Civil Procedure seeking exemption to bring on record legal representatives of defendant No. 6. The exemption was sought only on the ground
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