Allowed

Om Prakash and Ors. v. Jugal Kishore and Ors.

Rajasthan HC3 Mar 2021CLA/2/2015

Case brief

AI extract

What is this about?

Court allowed leave to file a second appeal against a compromise decree. Ruling holds that applicants aggrieved by the dismissal of their impleadment application are entitled to challenge both the application rejection and the subsequent decree since the appeal was disposed of on the same day, depriving them of other remedies.

What did the court decide?

Leave to prosecute the second appeal (S.B. Civil Second Appeal No. 72/2015) is granted.

Om Prakash and Ors. Vs Jugal Kishore and Ors. — Succession and Inheritance | Rajasthan HC (2021)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶2

S.B. Civ. Leave To Appeal No. 2/2015

¶3

Om Prakash S/o Ram Karan Mali, aged 45 years,

¶4

Kanyalal S/o Ram Karan Mali, aged 50 years,

¶5

Raj Kumar S/o Ram Karan Mali, aged 40 years,

¶6

Papu S/o Ram Karan Mali, aged 36 years,

¶7

Magni Devi Wd/o Ram Karan Mali, aged 80 years, All are R/o Kismideshar, Tehsil & District Bikaner.

¶8

----Appellants

¶9

Versus

¶10

Jugal Kishore S/o Shanker Lal, R/o Kishmidesha, Tehsil & District Bikaner.

¶11

----Plaintiff/Respondent.

¶12

Urban Improvement Trust through Secretary, Urban Improvement Trust, Bikaner.

¶13

Roopa Ram S/o Moda Ram Mali, R/o Kishmidesha, Tehsil & District Bikaner.

¶14

---- Defendants/Respondents

¶15

For Appellant(s) : Mr. J.L. Purohit, Sr. Advocate assisted by Mr. N.R. Budania For Respondent(s) : Mr. Sharad Kothari. Mr. Lalit Pareek. Mr. V.D. Vaishnav for Mr. Vikas Balia.

¶16

HON'BLE MR. JUSTICE ARUN BHANSALI

¶17

Judgment

¶18

03/03/2021

¶19

This leave to appeal has been filed by the applicants, legal representatives of Ram Karan Mali, qua the judgment & decree dated 25.11.2014 passed by the Additional District Judge No.1, Bikaner in Civil Appeal No.74/2009.

¶20

It is, inter-alia, indicated that the suit was filed by one Shankar Lal against Urban Improvement Trust ('UIT') and Roopa Ram, inter-alia, for permanent injunction in relation to the land

¶21

(2 of 8)

¶22

[CLA-2/2015]

¶23

comprised in Khasara No.711/224/1, wherein it was claimed that the plaintiff was in possession of the land in question; defendant - Roopa Ram was trying to get the land regularized in his favour fraudulently and therefore, the UIT be restrained from regularising the land in question in favour of the defendant No.2.

¶24

The suit was resisted by UIT indicating that the plaintiff has no legal right qua the land in question. The defendant No.2 - Roopa Ram claiming himself to be the legal representatives of one Fataram and his wife -Prayagi Devi and indicating that there are no other legal representatives claimed himself to be in possession of the land in question and disputed the possession of the plaintiff and claimed that in fact he was entitled for issuance of patta in his favour.

¶25

The suit filed by plaintiff - Shankar Lal was decreed by the trial court by judgment & decree dated 20.07.2005 and injunction was granted as prayed directing the UIT not to regularize the land in favour of the defendant No.2 and regularize the same in favour of the plaintiff.

¶26

Feeling aggrieved, Roopa Ram filed first appeal.

¶27

During pendency of the first appeal, a compromise was presented on 20.10.2014 between Roopa Ram and Jugal Kishore son of original plaintiff Shankar Lal, who had died in the meanwhile. The applicants herein on coming to know of compromise having been filed, filed an application on 10.11.2014 under Order I, Rule 10 CPC, inter-alia, claiming that Fataram had executed a will in favour of Ram Karan, their father and therefore, on death of Fataram, their father succeeded to the property of Fataram, who had died on 22.06.1996. It was submitted that Roopa Ram had no right in the land in question and the claim

¶28

(3 of 8)

¶29

[CLA-2/2015]

¶30

made by him as successor of Fataram is absolutely false and therefore, they may be impleaded as parties to the appeal.

¶31

The trial court by its order dated 25.11.2014 dismissed the

¶32

application filed by the applicants under Order I, Rule 10 CPC, inter-alia, indicating that only a photocopy of the will has been produced; neither original nor a certified copy has been produced, as the suit has not been filed claiming ownership and as compromise has already been filed, filing of the application was not justified, rejected the application. On the same day i.e. on 25.11.2014, accepted the compromise arrived at between the parties and based on the compromise, whereby both Roopa Ram and Jugal Kishore agreed to keep a part of the property and the UIT agreed to regularize the same in favour of both the parties, following decree was passed :-

¶33

"vihykFkhZ o jsLiksMs.V tqxyfd'kksj us jkthukek is'k dj tkfgj fd;k fd fooknxzLr Hkw&Hkkx tks jkthukek esa nf'kZr fd;k x;k gS ftlds lkFk vyx ls uD'kk Hkh yxk;k x;k gS] ml Hkw&Hkkx dks uxj fodkl U;kl chdkusj o :ikjke vkSj tqxyfd'kksj dh gn rd ekfQd jkthukek iV~Vk tkjh djs rks nksuksa gh i{kksa dks vkifRr ugha gS ftl lEcU/k esa uxj fodkl U;kl us Hkh jkthukek is'k dj tkfgj fd;k fd ;fn nksuksa gh i{kksa dks ,srjkt ugha gS rks uxj fodkl U;kl fu;ekuqlkj dk;Zokgh djus dks lger gSA

¶34

pwafd :ikjke] tqxyfd'kksj o uxj fodkl U;kl rhuksa gh }kjk jkthukek is'k fd;k x;k gS] vr% fooknxzLr Hkw&Hkkx tks jkthukek esa nf'kZr fd;k x;k gS] mldk uxj fodkl U;kl fu;ekuqlkj :ikjke vkSj tqxyfd'kksj ds i{k esa fu;eu djsA

¶35

fu;ekuqlkj fMØh tkjh gksA"

¶36

Feeling aggrieved, the applicants filed S.B. Civil Writ Petition No. 2036/2015 on 23.02.2015, however, this Court by order dated

¶37

(4 of 8)

¶38

[CLA-2/2015]

¶39

03.03.2015, ordered for registering the writ petition as a second appeal, whereby though the appeal has been registered, the present application for leave to appeal has been filed as the applicants were not impleaded as parties to the appeal.

¶40

It is submitted by learned counsel for the applicants with reference to the pleadings of the parties - Shankar Lal & Roopa Ram in the suit, observations made by the trial court, contentions raised in the memo of first appeal by Roopa Ram that the decree has been obtained by the parties fraudulently, inasmuch as, though the applicants' father Ram Karan succeeded to the property of the deceased Fataram and after death of Ram Karan, they are entitled to the property in question, Roopa Ram falsely claiming himself as legal representative of Fataram, was seeking to usurp the property. Further though Shankar Lal now represented by his son Jugal Kishore also had no right in the property in question as it was the specific case before the trial court that Shankar Lal had already transferred more land than what was owned by him, both Roopa Ram and Jugal Kishore in collusion have obtained the decree fraudulently.

¶41

Submissions were made that the first appellate court in a most cursory and slipshod manner has rejected the application filed under Order I, Rule 10 CPC and as the date on which the order rejecting the application under Order I, Rule 10 CPC was passed, by passing the decree based on compromise on the same day, the applicants have been deprived of challenging the order passed under Order I, Rule 10 CPC and as such, they have no option but to challenge the grant of decree by first appellate court by filing the appeal after seeking leave of the Court.

¶42

(5 of 8)

¶43

[CLA-2/2015]

¶44

Submissions were made that as their father had succeeded to the suit property based on the will executed by Fataram, they are aggrieved by the impugned decree, wherein wholly unconnected persons by wrongly claiming interest in the suit property have got a decree passed, wherein the land would be regularized in their favour by the UIT and therefore, they be granted leave to appeal.

¶45

Reliance was placed on A.V. Papayya Sastry & Ors. v. Govt. of A.P. & Ors. : (2007) 4 SCC 221.

¶46

Learned counsel for the respondents vehemently opposed the submissions.

¶47

A detailed reply has been filed on behalf of the respondent No.3 Roopa Ram seeking to question the locus of the applicants as legal representatives of Fataram. Documents have been filed seeking to question the bonafides of the applicants in waiting for all these years when the suit was pending before the trial court and the appeal before the first appellate court and only when the compromise was filed, the application for impleadment was filed. It was submitted that the applicants are not entitled to maintain the appeal, inasmuch as, if they are aggrieved by the decree passed by the appellate court on the ground of the same being allegedly fraudulent, the only remedy available to them is to file a suit in this regard and filing of the appeal cannot be countenanced.

¶48

Various submissions were made seeking to claim that Roopa Ram was in possession of the land in question and therefore, the plea sought to be raised in this regard by the applicants, has no substance. It was submitted that the application filed by the applicants deserves dismissal.

¶49

(6 of 8) [CLA-2/2015]

¶50

Reliance was placed on Kasturi v. Iyyamperumal & Ors. : (2005) 6 SCC 733, B.Raja Rajeswara Muthuramalinga Sethupathi Avergal v. The Secretary of State of India in Council : AIR 1926 Mad 341, and Sarvinder Singh v. Dalip Singh & Ors. : (1996) 5 SCC 539.

¶51

Learned counsel for the respondent No.1 Jugal Kishore adopted the arguments made by learned counsel for the respondent No.3 Roopa Ram.

¶52

I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

¶53

Though, various allegations & counter allegations have been made by the parties pertaining to locus standi of each other qua the disputed land in question and as the legal representatives of deceased Fataram and the fact that as to whether the decree has been obtained by committing fraud by taking stand opposite to the instance taken during the course of litigation. However, the fact remains that the applicants had moved an application under Order I, Rule 10 CPC during pendency of the first appeal on 10.11.2014 i.e. before the decree was passed by the trial court on 25.11.2014.

¶54

The appellate court decided the application on 25.11.2014 and essentially on the ground that the original will or its certified copy was not produced alongwith the application, rejected the application on 25.11.2014 and on the same day in the same breath, passed the decree based on the compromise.

¶55

Passing of the decree on the day when the application under Order I, Rule 10 CPC had been rejected, the applicants essentially were left with no remedy against dismissal of their application under Order I, Rule 10 CPC, inasmuch as, the appeal had already

¶56

(7 of 8)

¶57

[CLA-2/2015]

¶58

been decided on 25.11.2014 i.e. on the same day their application was rejected and therefore, in those circumstances, the only remedy available to them, in the opinion of this Court is to question the validity of decree and even of the order passed under Order I, Rule 10 CPC is by seeking leave to appeal from the decree and with the aid of provisions of Section 105 CPC to question the validity of the order dismissing their application under Order I, Rule 10 CPC, which provision applies to second appeal as laid down in Ganesh Ram v. Smt. Ramlakhan Devi & Anr. : AIR 1981 Patna 36.

¶59

Rule of ubi jus ibi remedium is well settled. Learned counsel for the respondents were specifically put the above circumstances as to once the application under Order I, Rule 10 CPC was rejected and the appeal was decided on the same day i.e. on 25.11.2014 whether the applicants had any remedy left with them except for filing the present leave to appeal, no answer was forthcoming except for reiteration that remedy available to them against the decree, is to file suit seeking cancellation of the decree, which apparently is not an answer to the remedy qua rejection of application under Order I, Rule 10 CPC.

¶60

Though, as noticed herein-before, various submissions were made on the merits of the compromise decree, this Court, refrains itself from expressing any opinion on the said aspect as the same only needs to be considered in the second appeal within the parameters of Section 100 CPC.

¶61

Therefore, in the circumstances noted herein-before, it is apparent that the applicants can well be said to be aggrieved by order dated 25.11.2014 and the consequential decree passed on

¶62

(8 of 8)

¶63

[CLA-2/2015]

¶64

the same day so as to seek leave from this Court to file the second appeal.

¶65

So far as the judgments cited by learned counsel for the respondent No.3 is concerned, the judgment in the case of Kasturi (supra) pertains to a specific kind of litigation i.e. suit for specific performance and the parameters laid down for a suit for specific performance cannot be applied to the present case.

¶66

Judgment in the case of Sarvinder Singh (supra) pertains to provisions of Section 52 of the Transfer of Property Act and it was held that transferees pendente lite were not necessary parties, said judgment has absolutely no application to the facts of the present case.

¶67

Similarly, judgment of Madras High Court in the case of B. Raja Rajeswara (supra) also is not of much assistance looking to the stage at which the application was decided by the appellate court and the decree was passed on the same day based on the compromise.

¶68

In view of the above discussion, the application for leave to appeal is allowed. The applicants are permitted to prosecute the second appeal, which has already been registered as S.B. Civil Second Appeal No. 72/2015 on account of the applicants having first filed a writ petition, which was ordered to be converted into a second appeal.

¶69

(ARUN BHANSALI),J

¶70

Rmathur/-

Om Prakash and Ors. v. Jugal Kishore and Ors.

Case brief

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Om Prakash and Ors. v. Jugal Kishore and Ors.

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