Remanded

Surinder Singh(deceased) through Lrs Sheela Davi v. Kishan Chand deceased through Lrs Vijay Kumar and Others

Himachal Pradesh HC8 Jul 2024RSA/387/2005

Case brief

AI extract

What is this about?

Second appeal concerning possession of land where a plaintiff had died during trial without her legal representatives being impleaded below. Relying on Supreme Court precedent, the High Court held decrees involving dead persons are nullity, set aside judgments of both courts below, and remanded the matter.

What did the court decide?

Judgments and decrees of both courts below set aside as nullity; matter remanded to trial Court for fresh decision on abatement, expeditiously preferably within six months.

Surinder Singh(deceased) through Lrs Sheela Davi… — Property and Title | Himachal Pradesh HC (2024)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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RSA No. 387 of 2005 Reserved on : 5.7.2024 Decided on : 8.7.2024

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Surinder Singh (deceased) & others

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… Appellants

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Versus

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Kishan Chand (deceased) through LRs.

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…Respondents

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Coram

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Hon’ble Mr. Justice Virender Singh, Judge Whether approved for reporting?

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For the Appellant:

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Mr. K.D. Sood, Senior Advocate with Mr. Vivek Thakur, Advocate.

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For the Respondents : Mr. Anand Sharma, Senior Advocate with Mr. Karan Sharma, Advocate, for respondents No. 1(a) to 1(e).

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None for remaining respondents.

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Virender Singh, Judge

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The appellants have preferred the present Regular

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Second Appeal, against the judgment and decree, dated

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20.6.2005, passed by the Court of learned Additional District Judge, Fast Track Court, Chamba, H.P. (hereinafter referred to as the ‘First Appellate Court’), in Civil Appeal No. 5/04/01, titled as, ‘Kishan Chand versus Surinder Singh & others’, whereby the learned First Appellate Court has allowed the appeal, preferred by the respondent Kishan Chand (since deceased), against the judgment and decree, dated 18.9.2001, passed by the Court of learned Sub Judge First Class, Dalhousie, District Chamba, H.P. (hereafter referred to as ‘the trial Court’), in Civil Suit No. 77 of 1998, titled as, ‘Kishan Chand & others versus Surinder Singh & others’,by granting the following relief:

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“In view of my findings on point No. 1 above, the appeal succeeds. Hence, it is allowed with cost and impugned judgment and decree dated 4.12.2003 are set aside and findings quashed. Resultantly, the suit of the plaintiff is decreed with costs. The decree for possession of land bearing Khasra Number 807 measuring 3-11 Bighas is passed in favour of the plaintiffs and against the defendants. The revenue entries are ordered to be corrected accordingly in favour of the plaintiffs. The record of the learned Trial Court along with copy of this judgment be sent back forthwith and the file of this Court be consigned to record room.”

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By way of judgment and decree dated 18.9.2001,

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the learned trial Court has dismissed the Civil Suit, preferred by Kishan Chand and others.

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The parties to the present lis are referred to in the same manner, in which, they were referred to, by the learned trial Court.

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The present appeal was admitted on the following substantial questions of law:

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“i) Whether the judgment of the Court below is perverse, based on misreading and misconstruction of the pleadings and oral and documentary evidence, particularly, Ext. PW1/A. Jamabandi PA for the year 1958-59, Misal Haquiat PD and PF, Jamabandi Ext. D1, D2, D4, D7, D9 and D10?

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ii) Whether on the material on record in the absence of registered deed, evidencing, exchange and on the basis of Rojnamcha Rapt. Ext. PW1/A, which did not mention the description of the exchanged property, the assumption that there was an exchange of the suit land between the predecessor-in-interests of the parties sustainable?

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Iii) Whether the assumption that there was an exchange of Kh. No. 797 which was owned by Beer Jang and in the tenancy of Kalu Ram could be assumed for Khasra No., 807 owned by the plaintiffs’ predecessor-in-interest?

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iv) Whether the assumptions that the defendant took forcible possession of the land from the plaintiffs is based on no evidence and in complete disregard to revenue records to which the presumption of truth is attached and decree for possession sustainable?

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v) Whether the Civil Court had jurisdiction to order the correction of the revenue record which jurisdiction was only with the revenue officer?

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Prior to the admission of the appeal, the defendants had moved CMP No. 902 of 2005. The said application was allowed, by this Court, vide order dated 28.9.2006, which is reproduced as under:

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“No reply is intended to be filed by the surviving respondents nor do they have any objection to the allowing of the prayer made in the application. Proposed LRs have not appeared despite service.

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Heard. Taking into account the reasons stated in the application, I feel that there was a sufficient cause for not filing the application for setting aside abatement within time. Hence, the delay in making the prayer of setting aside abatement is condoned.

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Also, I am satisfied from the reasons stated in the application that the applicants were prevented by sufficient cause from approaching the Court for representation of the estate of respondent No.3 and bringing on record his LRs, within the time limited by law. So, the abatement is set aside. Consequently, the prayer for representation of the estate of deceased respondent No.3 is also granted and the proposed LRs, named in para-4 of the application, are ordered to be substituted as respondents in place of deceased respondent No.3.

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Necessary corrections be carried out in the Memo of Parties. Amended Memo of Parties be also filed within two weeks.

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Application stands disposed of.

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Fresh notice of the appeal itself will be sent to the LRs of deceased respondent No.3, who have now been impleaded as respondents. Steps for effecting service be taken within one week.”

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During pendency of the appeal, CMP No. 1031 of 2006 was moved for framing the additional substantial question of law. The same was disposed of on 16.4.2007, by passing the following order:

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“This application has been moved by the appellants under the provisions of Order 41 Rule 2 of the CPC, wherein a prayer has been made that an additional ground may be allowed to be raised in the appeal. It is submitted by learned counsel for the appellants that the question, as framed, arises from the material already on the record.

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The application is allowed. Question, as framed in para-3 of the application, is allowed to be raised by the appellants as substantial question of law and will be considered at the time of the decision of the main appeal. The application is disposed of.”

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On 5.7.2024, when the matter was listed for

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hearing, it has been pointed out by learned Senior Advocate, appearing for the appellants that plaintiff No. 2(b) Guddi Devi has expired on 10.3.2001, when,

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the lis was pending before the learned trial Court. This fact has been highlighted by the learned Senior Counsel on the ground that the judgment and decree, in favour, or against a dead person, is nullity.

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Per contra, Mr. Anand Sharma, learned Senior Advocate, appearing for the respondents has submitted that defendants are now estopped from

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raising the plea of nullity, as they themselves had moved an application, under Order 22 Rule 4 CPC, which was registered as CMP(M) No. 902 of 2005 and

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LRs of Guddi Devi have already been brought on record.

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In addition to this, another point has also been highlighted that this Court, vide order dated 28.9.2006, passed in CMP(M) No. 902 of 2005, had also set aside the abatement.

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Considering the rival contentions, additional substantial question of law, as per order dated 16.4.2007, which has been formulated in the application, is required to be decided first. The additional substantial question of law is reproduced as under:

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“Whether in view of the admitted fact that Smt. Guddi Devi, plaintiff having died on 10.3.2001 during the pendency of the suit and her legal representatives having not been brought on record in the trial Court and she having been impleaded as a respondent in the appeal by Kishan Chand and the decree of the trial Court having been set aside and the suit decreed in favour of all the plaintiffs, the judgment and decree of the Addl. District Judge is a nullity and is liable to be set aside?”

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This question assumes significance, as it will go to the root of the case. Admittedly, death of Guddi Devi had taken place, when the lis was pending before the learned trial Court. The suit was dismissed and in appeal, said Guddi Devi has been impleaded as defendant No. 10 (b). Although, she has been impleaded as performa defendant, but, at the relevant time, she had already expired.

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It is no longer res-integra that decree passed by the Court, for or against a dead person, is nullity. The Hon'ble Apex Court in 'Gurnam Singh (Dead) through Legal Representatives & Others versus Gurbachan Kaur (Dead) by Legal Representatives' (2017) 13 SCC 414, has observed, in para No.21, as under:-

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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

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a settled principle of law that the decree passed by a Court for or against a dead person is a 'nullity."

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Similarly, the defendants had moved the application for impleading LRs of Guddi Devi, when the Regular Second Appeal, was pending before this Court and this Court had also set aside the abatement. But, the said question is to be decided by the Court, where death has taken place.

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Consequently, the additional substantial question of law is decided accordingly. The judgment and decree, passed by the learned trial Court, as well as, by the learned First Appellate Court, were, against a dead person. As such, the same is nullity and the same are set aside. The matter is remanded back to the learned trial Court to decide afresh, after deciding the question of abatement, if any.

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Since, the lis is pending between the parties from the year 2001, as such, it is expected from the learned trial Court to decide the matter expeditiously, preferably within a period of six months, from the date of receipt of the record.

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