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2010(3) LAW HERALD (P&H) 1821
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Rakesh Kumar Jain
RSA No.3974 of 2008 (O&M)
Raj Kumar & Ors.
v.
Rohtash & Ors.
{Decided on 14/05/2010}
(A) Civil Procedure Code, 1908, O.32, R.3 and 7--Suit against minor--Tenancy Rights--Compromise--General Power of attorney--Defendant no. 1 in general attorney had only given her rights to deal with her immovable or movable property standing in her name and nothing beyond that--She even did not give any right of her minor son in tenanted premises--GPA had no competence to enter into a compromise with plaintiff on strength of General Attorney--Thus, once very basis of exercise of power goes, order of AC Ist Grade on which plaintiff is relying upon for filing suit for declaration becomes redundant. (Para 11)
(B) Civil Procedure Code, 1908, O.32, R.3--Suit against minor--Appointment of Guardian--In case where defendant is a minor, Court, on being satisfied of fact of his minority, shall appoint a proper person to be his guardian--Said order can be obtained by other defendants or minor himself or by plaintiff--Application is required to be supported by an affidavit in which it is to be verified that proposed guardian has no interest in matters in controversy in suit adverse to that of minor but no such order shall be made except upon notice to father or mother of minor and where both of them are not available then to natural guardian or where all of them are not available then to minor himself. (Para 12)
(C) Civil Procedure Code, 1908, O.32, R.3--Suit against minor--Appointment of Guardian--Punjab and Haryana High Court has substituted sub-rules 3 and 4 to effect that plaintiff shall file, with his plaint a list of relatives with addresses, who prima-facie are most likely to be capable of acting as guardian for minor in suit. (Para 12)
(D) Civil Procedure Code, 1908, O.32, R.7--Compromise--Minor--In case of a compromise by next friend or guardian of minor, leave of Court is required to be obtained--While applying for leave of Court, it shall be accompanied by an affidavit of next friend or guardian for suit, as case may be and also, if minor is represented by a pleader , by certificate of pleader to effect that agreement or compromise proposed is, in his opinion, for benefit of minor. (Para 13)
(E) Civil Procedure Code, 1908, O.32, R.3 and 7--Ejectment petition –Plaintiff while filing ejectment petition before Revenue Authority, knew that defendant No.2 is a minor--However, neither list of relatives of minors in terms of Order 32 Rule 3 CPC was filed nor permission in terms of Order Rule 3 CPC was obtained, which is mandatory in nature. (Para 14)
Rakesh Kumar Jain, J.:- The appellants are the legal representatives of plaintiff Sheo Raj Singh, who have filed the present appeal challenging the judgment and decree of learned District Judge, Bhiwani dated 6.2.2008 by which the judgment and decree of learned Civil Judge (Sr.Divn.) Bhiwani dated 23.11.2004 in favour of the plaintiff has been reversed.
2. The pleaded case of the plaintiff Sheo Raj Singh is that he was owner in possession of land falling in Khewat No.16/16 Min Khatoni No.38/1, Khasra Nos.272//19(8-0) 20/1(1-6) total measuring 9 kanals 6 marlas as per jamabandi for the year 1977-78 but the entry in the column of cultivation appearing in the name of Ved Parkash s/o Jagan as Gair Marusi is illegal, null and void and is liable to be corrected and further the defendants be restrained from interfering in their peaceful possession over the property in dispute. It is alleged that land falling in Khasra No.272/19, 20, 21, 22, 282/1,2, 10/1 and 283/4/2 and 5 total measuring 64 kanals 13 marlas was jointly owned by him and his brothers which was cultivated by Ved Parkash son of Jagan (predecessor-in-interest of the defendants) as a Gair Marusi tenant. After the death of Ved Parkash his tenancy rights devolved upon his widow Indrawati and Rohtash. The plaintiff filed a petition in the year 1982 in the Court of Assistant Collector Ist Grade (ACIG) Bhiwani for their ejectment whereas the defendants much less the successor-in-interest of Ved Parkash filed an application before the same Authority claiming occupancy rights. In those proceedings, Inder Singh used to appear on behalf of Indrawati as her General Attorney who entered into a compromise with the plaintiff after receiving a sum of Rs.5000/- on behalf of Indrawati and handed over the possession of land in question to them. After the compromise, Inder Singh withdrew the petition for occupancy rights and the plaintiff withdrew the petition for ejectment. Later on, in a family settlement, which took place in the family of the plaintiff, he got the land in question. A mutation was also sanctioned in his favour. It is alleged that concerned patwari assured at that time that entries in the khasra girdawari would also be corrected but it continued in the name of deceased Ved Parkash which led to the filing of the present suit.
3. The suit was contested by defendants No.1 and 2, who filed a joint written statement whereas defendants No.3 to 7, who happened to be the daughters of Ved Parkash adopted written statement of defendants No.1 and 2. It was alleged that they are still in possession of the land in dispute against the payment of nominal rent. The alleged compromise was never acted upon and possession was not delivered to the plaintiff. Defendants No.2 to 7 were minors at that time and no guardian was appointed in those proceedings to defend them in terms of Order 32 Rule 3 of the Code of Civil Procedure, 1908 (for short ‘CPC’). On the pleadings of the parties, the following issues were framed by the trial Court:
1) Whether the plaintiff is owner in possession in Khewat No.16/16 Min Khatoni No.38/1, Killa Nos.272//19(8-0) 20/1 (1-6) as alleged, in the head note of the plaint? OPP.
2) If issue No.1 is proved, whether the plaintiff is entitled to get the revenue record corrected in his favour? OPP.
3) Whether the plaintiff is estopped to file the present suit by his own act and conduct? OPD.
4) Whether the suit is barred by limitation? OPD.
5) Whether the suit is not maintainable in the present form? OPD.
6) Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD.
7) Relief.
4. Both the parties led their respective evidence. The learned trial Court decreed the suit. Aggrieved defendants filed first appeal under Section 96 of CPC which is allowed by the first Appellate Court and judgment and decree of the trial Court has been reversed.
5. The learned trial Court on the basis of the evidence on record concluded that power of attorney (Ex.P10
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