Preet Ram Vs Smt. Rahimat Bai

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2025:CGHC:47176

Digitally signed by AJAY KUMAR DWIVEDI DN: cn=AJAY KUMAR DWIVEDI, ou=HIGH COURT, o=HIGH COURT OF CHHATTISGARH, st=Chhattisgarh, c=IN Date: 2025.09.18 10:31:32 +0530

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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SA No. 81 of 2024

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1 - Preet Ram S/o Late Lacchan Aged About 75 Years R/o Village - Katholi, Tehsil Kurud, District - Dhamtari, Chhattisgarh. (Defendant No. 4)

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2 - Devlal S/o Late Shankarlal Aged About 54 Years R/o Village Sirsida, Tehsil Kurud, District - Dhamtari, Chhattisgarh.(Defendant No.1)

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3 - Ishuram (Died And Deleted) Nil.

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3(A) Baishakhin Wd/o Shankarlal Aged About 62 Years R/o Village Sirsida, Tehsil - Kurud, District - Dhamtari, Chhattisgarh.

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3(B) Durpati Bai W/o Ishuram Aged About 45 Years R/o Village Sirsida, Tehsil - Kurud, District - Dhamtari, Chhattisgarh.

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3(C) Yaadram S/o Ishuram Aged About 25 Years R/o Village Sirsida, Tehsil - Kurud, District - Dhamtari, Chhattisgarh.

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3(D) Dageshwar Lal S/o Ishuram Aged About 22 Years R/o Village Sirsida, Tehsil - Kurud, District - Dhamtari, Chhattisgarh.

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3(E) Kranti S/o Ishuram Aged About 19 Years R/o Village Sirsida, Tehsil - Kurud, District - Dhamtari, Chhattisgarh. (Appellants No.3(A) to 3(E) are legal heirs of original defendant No.2 namely Ishuram)

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4 - Brijram (Died And Deleted) Nil.

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4(A) Dularu Ram S/o Late Bijram Aged About 54 Years R/o Village Katholi, Tehsil - Kurud, District - Dhamtari, Chhattisgarh.

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4(B) Naresh S/o Late Brijram Aged About 52 Years R/o Village Katholi, Tehsil - Kurud, District - Dhamtari, Chhattisgarh

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4(C) Amarsingh S/o Late Brijram Aged About 46 Years R/o Village Katholi, Tehsil - Kurud, District - Dhamtari, Chhattisgarh

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4(D) Jhamin Bai D/o Late Brijram Aged About 48 Years R/o Village Katholi, Tehsil - Kurud, District - Dhamtari, Chhattisgarh

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4(E) Bahuri Bai Vishwakarma W/o Late Brijal Aged About 75 Years R/o Village Katholi, Tehsil - Kurud, District - Dhamtari, Chhattisgarh

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(Appellants No.4(A) to 4(E) are legal heirs of original defendant No.3 namely Brijram)

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5 - Tularam S/o Late Lacchan Aged About 70 Years R/o Village Katholi, Tehsil Kurud, District - Dhamtari, Chhattisgarh. (Defendant No. 5)

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--- Appellants

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Versus

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1 - Smt. Rahimat Bai W/o Late Lakhan Vishwakarma Aged About 57 Years R/o Village Katholi, Tehsil - Kurudh, District - Dhamtari, Chhattisgarh.

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2 - Ghanshyam S/o Late Lakhan Vishwakarama Aged About 37 Years R/o Village Katholi, Tehsil Kurud, District - Dhamtari, Chhattisgarh.

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3 - Umesh Kumar S/o Late Lakhan Vishwakarma Aged About 34 Years R/o Village Katholi, Tehsil Kurud, District - Dhamtari, Chhattisgarh.

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4 - Tikesh Kumar S/o Late Lakhan Vishwakarma Aged About 27 Years R/o Village Katholi, Tehsil Kurud, District - Dhamtari, Chhattisgarh. (Respondents No.1 to 4 are legal heirs of original plaintiff Lakhan)

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5 - State Of Chhattisgarh through District Collector, Dhamtari, Chhattisgarh. (Defendant No. 13)

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6 - Pyarelal S/o Late Mangturam Aged About 55 Years R/o Village Katholi, Tehsil Kurud, District - Dhamtari, Chhattisgarh. (Defendant No. 6)

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7 - Kumari Seema D/o Late Pyariram Aged About 20 Years R/o Village Katholi, Tehsil Kurud, District - Dhamtari, Chhattisgarh. (Defendant No. 7)

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8 - Dharmendra Kumar D/o Late Pyariram Aged About 18 Years R/o Village Katholi, Tehsil Kurud, District - Dhamtari, Chhattisgarh. (Defendant No. 8)

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9 - Smt. Anshu Bai (Died And Deleted) Nil.

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10 - Gaindlal S/o Mangturam Aged About 40 Years R/o Village Katholi, Tehsil Kurud, District - Dhamtari, Chhattisgarh. (Defendant No. 10)

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11 - Dulorin Bai W/o Mangtuam Aged About 47 Years R/o Village Katholi, Tehsil Kurud, District - Dhamtari, Chhattisgarh. (Defendant No. 11)

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12 - Thagan Bai D/o Mangturam Aged About 45 Years R/o Village Katholi, Tehsil Kurud, District - Dhamtari, Chhattisgarh. (Defendant No. 12)

--- Respondents.

WITH

SA No. 46 of 2024

1 - Preet Ram S/o Late Lacchan Aged About 75 Years R/o Village - Katholi, Tehsil Kurud, District - Dhamtari, Chhattisgarh. (Defendant No. 4)

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2 - Devlal S/o Late Shankarlal Aged About 54 Years R/o Village Sirsida, Tehsil Kurud, District - Dhamtari, Chhattisgarh. (Defendant No.1)

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3 - Ishuram (Died And Deleted) Nil.

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3(A) Baishakhin Wd/o Shankarlal Aged About 62 Years R/o Village Sirsida, Tehsil - Kurud, District - Dhamtari, Chhattisgarh.

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3(B) Durpati Bai W/o Ishuram Aged About 45 Years R/o Village Sirsida, Tehsil - Kurud, District - Dhamtari, Chhattisgarh.

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3(C) Yaadram S/o Ishuram Aged About 25 Years R/o Village Sirsida, Tehsil - Kurud, District - Dhamtari, Chhattisgarh.

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3(D) Dageshwar Lal S/o Ishuram Aged About 22 Years R/o Village Sirsida, Tehsil - Kurud, District - Dhamtari, Chhattisgarh.

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3(E) Kranti S/o Ishuram Aged About 19 Years R/o Village Sirsida, Tehsil - Kurud, District - Dhamtari, Chhattisgarh. (Appellants No.3(A) to 3(E) are legal heirs of original defendant No.2 namely Ishuram)

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4 - Brijram (Died And Deleted) Nil.

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4(A) Dularu Ram S/o Late Bijram Aged About 54 Years R/o Village Katholi, Tehsil - Kurud, District - Dhamtari, Chhattisgarh.

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4(B) Naresh S/o Late Brijram Aged About 52 Years R/o Village Katholi, Tehsil - Kurud, District - Dhamtari, Chhattisgarh

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4(C) Amarsingh S/o Late Brijram Aged About 46 Years R/o Village Katholi, Tehsil - Kurud, District - Dhamtari, Chhattisgarh

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4(D) Jhamin Bai D/o Late Brijram Aged About 48 Years R/o Village Katholi, Tehsil - Kurud, District - Dhamtari, Chhattisgarh

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4(E) Bahuri Bai Vishwakarma W/o Late Brijal Aged About 75 Years R/o Village Katholi, Tehsil - Kurud, District - Dhamtari, Chhattisgarh

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(Appellants No.4(A) to 4(E) are legal heirs of original defendant No.3 namely Brijram)

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5 - Tularam S/o Late Lacchan Aged About 70 Years R/o Village Katholi, Tehsil Kurud, District - Dhamtari, Chhattisgarh. (Defendant No. 5)

--- Appellants.

Versus

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1 - Smt. Rahimat Bai W/o Late Lakhan Vishwakarma Aged About 57 Years R/o Village Katholi, Tehsil - Kurudh, District - Dhamtari, Chhattisgarh.

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2 - Ghanshyam S/o Late Lakhan Vishwakarama Aged About 37 Years R/o Village Katholi, Tehsil Kurud, District - Dhamtari, Chhattisgarh.

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3 - Umesh Kumar S/o Late Lakhan Vishwakarma Aged About 34 Years R/o Village Katholi, Tehsil Kurud, District - Dhamtari, Chhattisgarh.

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4 - Tikesh Kumar S/o Late Laknan Vishwakarma Aged About 27 Years R/o Village Katholi, Tehsil Kurud, District - Dhamtari, Chhattisgarh. (Respondents No.1 to 4 are legal heirs of original plaintiff Lakhan)

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5 - State Of Chhattisgarh through District Collector, Dhamtari, Chhattisgarh. (Defendant No. 13)

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6 - Pyarelal S/o Late Mangturam Aged About 55 Years R/o Village Katholi, Tehsil Kurud, District - Dhamtari, Chhattisgarh. (Defendant No. 6)

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7 - Kumari Seema D/o Late Pyariram Aged About 20 Years R/o Village Katholi, Tehsil Kurud, District - Dhamtari, Chhattisgarh. (Defendant No. 7)

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8 - Dharmendra Kumar D/o Late Pyariram Aged About 18 Years R/o Village Katholi, Tehsil Kurud, District - Dhamtari, Chhattisgarh. (Defendant No. 8)

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9 - Smt. Anshu Bai (Died And Deleted) Nil.

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10 - Gaindlal S/o Mangturam Aged About 40 Years R/o Village Katholi, Tehsil Kurud, District - Dhamtari, Chhattisgarh. (Defendant No. 10)

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11 - Dulorin Bai W/o Mangtuam Aged About 47 Years R/o Village Katholi, Tehsil Kurud, District - Dhamtari, Chhattisgarh. (Defendant No. 11)

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12 - Thagan Bai D/o Mangturam Aged About 45 Years R/o Village Katholi, Tehsil Kurud, District - Dhamtari, Chhattisgarh. (Defendant No. 12)

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....Respondents .

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For Appellants	: Mr. Shubhank Tiwari, Advocate.
For Respondents No.1 to 4	: Mr. Sachin Nidhi with Mr. Himanshu Yadav, Advocates.
For Respondents No.6, 7, 8,	: Mr. Hari Om Rai, Advocate.
10 & 11
For Respondent No.5/State	: Mr. Ritesh Giri, Panel Lawyer.

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Hon'ble Shri Justice Deepak Kumar Tiwari

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Judgment On Board

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15/09/2025

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Since both the appeals arise out of common judgment dated 10.08.2023, they are being disposed of by this common judgment.

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For the sake of convenience, the parties are addressed as per the details given before the trial Court.

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Second Appeal No.81/2024 has been preferred by the appellants (defendants therein) against the judgment and decree dated 10.08.2023 passed by the Additional District Judge, Link Court Kurud, District Dhamtari (CG) in Civil Appeal No.36A/2018 (filed by the plaintiffs therein) arising out of the judgment and decree dated 25.11.2017 passed by the Civil Judge, Class-2, Kurud, District Dhamtari in Civil Suit No.74A/1998, whereby, appeal of the plaintiffs was allowed in part.

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Second Appeal No.46/2024 has been preferred by the appellants against the judgment and decree dated 10.08.2023 passed by the Additional District Judge, Link Court Kurud, District Dhamtari in Civil Appeal No.5A/2018 (filed by the defendants therein) arising out of the judgment and decree dated 25.11.2017 passed by the Civil Judge, Class-2, Kurud, District Dhamtari in Civil Suit No.74A/1998, whereby, appeal of the defendants was dismissed.

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Facts of the case, in short, are that the original plaintiff Lakhan has filed a Civil Suit No.74-A/1998 for declaration of title and permanent injunction in respect of agricultural land situated at Village Katholi, Patwari Halka No.9, Tehsil Kurud, District Dhamtari bearing Khasra No.864/3, 864/5, 852 and 1371 admeasuring total area 4.2 acre. The said civil suit was partly allowed in favour of the plaintiff and decree was made to the effect that plaintiff is title holder of agricultural land bearing Khasra No.1371 New Khasra No.1401 Area 1.49 acre and piece of Khasra No.864/3 New Khasra No.2392 Area 0.39 acre situated at Katholi Patwari Halka No.09, Tahsil Kurud, District Dhamtari, and permanent injunction was passed in favour of the plaintiffs against the defendants in respect of the aforesaid property.

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Against the aforesaid judgment and decree, the plaintiffs as well as defendants both have preferred civil appeals as mentioned in Para 3 and 4 of this judgment and by the common judgment and

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decree dated 10.08.2023 the First Appellate Court has dismissed the Civil Appeal No.5-A/2018 and partly allowed the Civil Appeal No.36-A/2018 and modified the decree passed by the trial Court. Further, while partly allowing the Civil Appeal No.36-A/2018, the First Appellate Court held that plaintiff Lakhan Lal is entitled to be title holder of suit property bearing Khasra No.1371 New Khasra No.1401 area 2.60 acre and Khasra No.864/3 and 864/5 New Khasra No.2392 area 0.31 hectare and also granted decree of permanent injunction in his favour. Being aggrieved by the impugned judgment and decree, the two different appeals have been filed by the appellants.

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Shri Shubhank Tiwari, learned counsel for the appellants submits that during the pendency of first appeal, two defendants namely defendant No.3 Brij Ram S/o late Lachhan and defendant No.9 Smt. Anshubai W/o late Pyariram had died. However, neither the defendants nor the plaintiffs have taken any legal steps to bring legal representatives of deceased defendants on record. He submits that in the circumstances, the impugned judgment and decree passed by the First Appellate Court against the dead person is nullity and deserves to be set-aside. He also places reliance in the matter of Gurnam Singh (dead) through legal representatives and others Vs. Gurbachan Kaur (dead) by legal representatives [(2017) 13 SCC 414] . In view of such submission learned counsel submits that this appeal may be admitted by formulating such

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substantial question of law and the Appeal may be allowed on such score and the matter may be remitted to the First Appellate Court to proceed with the matter in accordance with law.

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Considering the aforesaid submission of counsel for the appellant, the Appeal is admitted for hearing on the following substantial question of law:-

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“Whether without impleading the legal heirs of deceased defendants Brij Ram and Smt. Anshu Bai who allegedly died during the pendency of the First Appeal, the decree passed against them is bad in law in view of the fact that the appeal stood already abated and the decree against a dead person is nullity in the eye of law?”

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Mr. Sachin Nidhi and Mr. Hari Om Rai, learned counsel for the respective respondents would not oppose the fact that deceased Brij Ram and Smt. Anshu Bai had died during the pendency of the First Appeal and would fairly admit that it was the legal requirement to bring his LRs on record. They submit that the matter may be remitted for affording an opportunity to the parties to file a suitable application in this regard, which may be directed to be considered in accordance with law and thereafter, to proceed in the Appeal.

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Heard learned counsel for the parties and perused the record.

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It is not disputed by learned counsel for the parties that two persons of the parties namely Brij Ram S/o late Lachhan and Smt.

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Anshu Bai W/o late Pyari Ram had died during the pendency of the first appeal. It is also not disputed that no suitable application i.e. application under Order 22 Rule 4 of the CPC were filed by the parties to bring their legal representatives on record enabling them to contrest the lis.

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On query being made, Shri Sachin Nidhi, learned counsel for respondents No.1 to 4, who are the legal representatives of original plaintiff Lakhan, has also admitted the fact that the information about death of aforesaid deceased persons who were defendants in the original suit was not received at the relevant time, therefore, such information could not be brought to the notice of the concerned Court.

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However, at this juncture, both counsel for the parties are willing to prefer appropriate applications to bring LRs of deceased including application for abatement and condonation of delay, before the First Appellate Court.

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In the matter of Gurnam Singh (Supra), the Hon'ble Supreme Court categorically held that the decree passed by a court for or against a dead person is a nullity and following was held at Para 21 and 22:-

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"21) In our considered view, the appeal could be revived for hearing only when firstly, the proposed legal representatives of the deceased persons had filed an application for substitution of their names

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and secondly, they had applied for setting aside of the abatement under Order 22 Rule 9 of the Code and making out therein a sufficient cause for setting aside of an abatement and lastly, had filed an application under Section 5 of the Limitation Act seeking condonation of delay in filing the substitution application under Order 22 Rules 3 and 4 of the Code beyond the statutory period of 90 days. If these applications had been allowed by the High Court, the second appeal could have been revived for final hearing but not otherwise. Such was not the case here because no such applications had been filed.

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It is a fundamental principle of law laid down by this Court in Kiran Singh’s case (supra) that a decree passed by the Court, if it is a nullity, its validity can be questioned in any proceeding including in execution proceedings or even in collateral proceedings whenever such decree is sought to be enforced by the decree holder. The reason is that the defect of this nature affects the very authority of the Court in passing such decree and goes to the root of the case. This principle, in our considered opinion, squarely applies to this case because it is a settled principle of law that the decree passed by a Court for or against a dead person is a “nullity” (See-N. Jayaram Reddy & Anr. Vs. Revenue Divisional Officer & Land Acquisition Officer, Kurnool, (1979) 3 SCC 578, Ashok Transport Agency vs. Awadhesh Kumar & Anr., (1998) 5 SCC 567 and Amba Bai & Ors. Vs. Gopal & Ors., (2001) 5 SCC 570)."

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Further, the Hon'ble Supreme Court in the matter of Jaladi Suguna (Deceased) through LRs. Vs. Satya Sai Central Trust and others [(2008) 8 SCC 521)] has held that the provisions of Rules 4 and 5 of Order 22 are mandatory. Relevant paragraphs of the judgment states as under:-

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“14 . When a respondent in an appeal dies, and the right to sue survives, the legal representatives of the deceased respondent have to be brought on record before the court can proceed further in the appeal. Where the respondent-plaintiff who has succeeded in a suit, dies during the pendency of the appeal, any judgment rendered on hearing the appeal filed by the defendant, without bringing the legal representatives of the deceased respondent - plaintiff on record, will be a nullity. In the appeal before the High Court, the first respondent therein (Suguna) was the contesting respondent and the second respondent (tenant) was only a proforma respondent. When first respondent in the appeal died, the right to prosecute the appeal survived against her estate. Therefore it was necessary to bring the legal representative/s of the deceased

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Suguna on record to proceed with the appeal.

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Filing an application to bring the legal representatives on record, does not amount to bringing the legal representatives on record. When an LR application is filed, the court should consider it and decide whether the persons named therein as the legal representatives, should be brought on

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record to represent the estate of the deceased. Until such decision by the court, the persons claiming to be the legal representatives have no right to represent the estate of the deceased, nor prosecute or defend the case. If there is a dispute as to who is the legal representative, a decision should be rendered on such dispute. Only when the question of legal representative is determined by the court and such legal representative is brought on record, it can be said that the estate of the deceased is represented. The determination as to who is the legal representative under Order 22 Rule 5 will of course be for the limited purpose of representation of the estate of the deceased, for adjudication of that case. Such determination for such limited purpose will not confer on the person held to be the legal representative, any right to the property which is the subject matter of the suit, vis-...-vis other rival claimants to the estate of the deceased.

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The provisions of Rules 4 and 5 of Order 22 are mandatory. When a respondent in an appeal dies, the Court cannot simply say that it will hear all rival claimants to the estate of the deceased respondent and proceed to dispose of the appeal. Nor can it implead all persons claiming to be legal representatives, as parties to the appeal without deciding who will represent the estate of the deceased, and proceed to hear the appeal on merits. The court cannot also postpone the decision as to who is the legal representative of the deceased respondent, for being decided along with the appeal on merits. The Code clearly provides that where a

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question arises as to whether any person is or is not the legal representative of a deceased respondent, such question shall be determined by the court. The Code also provides that where one of the respondents dies and the right to sue does not survive against the surviving respondents, the court shall, on an application made in that behalf, cause the legal representatives of the deceased respondent to be made parties, and then proceed with the case. Though Rule 5 does not specifically provide that determination of legal representative should precede the hearing of the appeal on merits, Rule 4 read with Rule 11 make it clear that the appeal can be heard only after the legal representatives are brought on record.”

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In light of the aforesaid principles and considering the submission of learned counsel for the parties and also considering the fact that during the pendency of the First Appeal, two defendants namely Brij Ram and Smt. Anshu Bai already died and that the parties have never taken any steps to bring their LRs on record, this Court is of the view that the impugned decree which has been passed against the dead persons is a nullity, and in order to serve complete justice, the matter is required to be restored to its original number before the First Appellate Court.

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For the foregoing, the impugned judgment and decree is set aside. The matter is remitted to the First Appellate Court for hearing and disposal in accordance with law.

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Further, the First Appellate Court shall afford an opportunity to the concerned parties to prefer a suitable application thereof. Thereafter, the concerned Court may firstly decide such application and depending upon the result thereof proceed further with the appeal on merits in accordance with law without being prejudiced by the impugned judgment and decree. The First Appellate Court is expected to consider and decide the Appeal expeditiously preferably within a period of three months from the date of receipt of communication/copy of this judgment.

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