Dismissed

Bhanwar Lal v. Lrs of Jawari Lal

Rajasthan HC12 Jan 2021CR/48/2019

Case brief

AI extract

What is this about?

High Court of Rajasthan dismissed a civil revision petition challenging appellate restoration of a suit dismissed for abatement following the death of one plaintiff. Bench distinguished precedents and upheld order allowing remaining plaintiffs to continue suit.

What did the court decide?

Revision petition dismissed; previous appellate judgment allowing majority plaintiffs to continue suit upheld.

Bhanwar Lal Vs Lrs of Jawari Lal — Property and Title | Rajasthan HC (2021)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶2

S.B. Civil Revision Petition No. 48/2019

¶3

Bhanwar Lal S/o Shri Sukha Ram Ji, Aged About 54 Years, R/o Pipaliya Kalan, Tehsil Raipur, District Pali (Rajasthan)

¶4

----Petitioner

¶5

Versus

¶6

Lrs Of Jawari Lal, Tehsil Raipur, District Pali (Rajasthan)

¶7

Ramesh S/o Jawari Lal, R/o Pipaliya Kalan, Tehsil Raipur, District Pali (Rajasthan)

¶8

Santosh D/o Jawari Lal, R/o Pipaliya Kalan, Tehsil Raipur, District Pali (Rajasthan)

¶9

Vanita D/o Jawari Lal, R/o Pipaliya Kalan, Tehsil Raipur, District Pali (Rajasthan)

¶10

Arun Devi W/o Jawari Lal, R/o Pipaliya Kalan, Tehsil Raipur, District Pali (Rajasthan)

¶11

Umrao Devi W/o Ratan Chand, R/o Pipaliya Kalan, Tehsil Raipur, District Pali (Rajasthan)

¶12

Kamla Bai W/o Shanti Lal, R/o Pipaliya Kalan, Tehsil Raipur, District Pali (Rajasthan)

¶13

Ashok Kumar S/o Shanti Lal, R/o Pipaliya Kalan, Tehsil Raipur, District Pali (Rajasthan)

¶14

Mahendra Kumar S/o Shanti Lal, R/o Pipaliya Kalan, Tehsil Raipur, District Pali (Rajasthan)

¶15

Rajendra S/o Shanti Lal, R/o Pipaliya Kalan, Tehsil Raipur, District Pali (Rajasthan)

¶16

Prakash Chand S/o Panna Lal, R/o Pipaliya Kalan, Tehsil Raipur, District Pali (Rajasthan)

¶17

Suresh Chand S/o Dhanraj Ji, R/o Pipaliya Kalan, Tehsil Raipur, District Pali (Rajasthan)

¶18

Prakash Bai W/o Paras Ram, R/o Pipaliya Kalan, Tehsil Raipur, District Pali (Rajasthan)

¶19

Yashwant S/o Shanti Lal, R/o Pipaliya Kalan, Tehsil Raipur, District Pali (Rajasthan)

----Respondents

(2 of 5)

[CR-48/2019]

For Petitioner(s) : Mr. Arvind Samdariya. For Respondent(s) :

¶24

HON'BLE MR. JUSTICE ARUN BHANSALI Order

¶25

12/01/2021

¶26

This revision petition is directed against the judgment dated 8/1/2019 passed by Addl.District Judge, Jaitaran, District Pali, whereby, the appeal filed by the respondents against the order dated 12/10/2011 passed by the Civil Judge (Sr. Div.), Jaitaran has been allowed and the suit, which was dismissed by the trial court as abated, has been restored.

¶27

The suit was filed by the six plainitffs including one Parasmal for cancellation of sale deed and permanent injunction inter alia with the submissions that one Oswalo-ka-chowk was situated at Pipalian Kalan, which was being used by the plaintiffs from time immemorial and the same was not owned by any one person. It was claimed that defendant Shanti Lal was not owner of the land in question, however, defendant Bhanwar Lal stated that he has purchased the said Chowk from Shanti Lal on 5/1/1998 by registered sale deed and that he would raise construction. It was claimed that for the first time on obtaining certified copy of the sale deed, the plaintiffs became aware of the said sale. It was averred that defendant Shanti Lal has no right to transfer the land of Chowk, he was never in possession and, therefore, the sale deed was liable to be cancelled.

¶28

It was further alleged that the defendant no.2 was seeking to raise construction and, therefore, he be restrained from raising any construction on the land of Chowk.

¶29

(3 of 5)

¶30

[CR-48/2019]

¶31

By way of amendment, it was claimed that in violation of temporary injunction order dated 22/2/2000, the construction raised, be demolished.

¶32

During the pendency of the suit, one of the plaintiffs - Parasmal died in the year 2007 and after four years an application under Order XXII Rule 3 CPC was filed to bring on record his legal representatives. The application was contested by the defendants and by order dated 12/10/2011, the trial court observing that as the application was filed belated, without any reasonable cause and no application was filed seeking condonation of delay and as the suit was for cancellation of sale deed and permanent injunction, wherein, all the plaintiffs had joint interest, in absence of legal representatives of Parasmal, the same cannot be proceeded and consequently rejected the application under Order XXII Rule 3 CPC and dismissed the suit as having become abated.

¶33

Feeling aggrieved, the plaintiffs and legal representatives of Parasmal filed appeal before the Addl. District Judge, Jaitaran. The appellate court by its judgment came to the conclusion that as the steps were not taken for bringing on record the legal representatives of deceased Parasmal within the period of limitation, the suit itself abated qua him and as no application was filed seeking setting aside of abatement and condonation of delay in filing the application, the trial court was justified in rejecting the suit qua Parasmal. However, the appellate court also came to the conclusion that as all the plaintiffs had separate right and had right to file separate suits, on account of death of one plaintiff and not bringing on record his legal representatives, the entire suit could not abate as the suit pertained to a common Chowk and for right of way and consequently accepted the appeal and the order

¶34

(4 of 5)

¶35

[CR-48/2019]

¶36

dated 12/10/2011 was modified to the extent that suit qua Parasmal stood abated, however, rest of the plaintiffs could continue with the suit.

¶37

Feeling aggrieved, the present revision petition has been filed.

¶38

It is submitted by learned counsel for the petitioner that the appellate court was not justified in setting aside the order passed by the trial court inasmuch as the plaintiffs had filed the suit for common cause and once the same stood abated qua Parasmal, the same could not be proceeded with by other plaintiffs.

¶39

Submissions were also made that a look at the issues framed would indicate that the same were common to all the plaintiffs and once the issues were common to all the plaintiffs, the abatement of suit qua one plaintiff would result in abatement qua all the plaintiffs and on that could also the judgment impugned deserves to be quashed and set aside.

¶40

Reliance was placed on Badni & ors. vs. Siri Chand & Ors. : AIR 1999 SC 1077 and Babu Sukhram Singh vs. Ram Dular Singh & Ors. : AIR 1973 SC 204 .

¶41

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

¶42

As noticed hereinbefore, the nature of suit was that several plaintiffs, who were essentially not connected to each other, filed the suit in relation to a common Chowk claiming right to use the same and lack of any authority in defendant no.1 to transfer the same to defendant no.2. Further, permanent injunction was sought from raising any construction over the said Chowk. The nature of suit was such wherein, all the plaintiffs had similar but

¶43

(5 of 5) [CR-48/2019]

¶44

independent right to file the suit for cancellation of sale deed and injunction and, therefore, apparently the first appellate court was justified in coming to the conclusion that on account of suit having abated qua one plaintiff, the same would not abate as a whole. The abatement of the suit as a whole in case of several plaintiffs may arise in a given case where the plaintiffs are so interconnected that in case the suit abates qua one plaintiff, all the plaintiffs would be bound, on account of such abatement and the suit would abate as a whole, which is not the circumstance in the present case.

¶45

The reliance placed by learned counsel for the petitioner on the judgment in the case of Babu Sukhram Singh (supra) has no application to the facts of the present case inasmuch as in the said case the joint claim was against several defendants and legal representatives of many defendants were not brought on record, which situation cannot be compared with the suit of present nature, where one of the plaintiffs had died and not the defendant.

¶46

Further, the case of Badni (supra) also has no application to the facts of the present case in view of the nature of the suit, wherein, in the present case all the plaintiffs have similar but independent cause, however, they filed a common suit.

¶47

In view of the above discussion, no case for interference is made out in the judgment impugned. There is no substance in the revision petition and the same is, therefore, dismissed.

¶48

(ARUN BHANSALI),J

¶49

25-baweja/-

Bhanwar Lal v. Lrs of Jawari Lal

Case brief

What is this about?

What did the court decide?

Bhanwar Lal v. Lrs of Jawari Lal

Case brief

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What did the court decide?

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