Dismissed

Lrs of Late Ram Singh v. Roop Singh

Rajasthan HC4 Nov 2023CSA/155/2023

Case brief

AI extract

What is this about?

In this second appeal challenging a property decree, the High Court affirmed the lower courts' judgment. Dismissing contentions regarding procedural irregularities under CPC Order 13 Rule 4 and non-mention of counter claim dismissal, the Court held these were mere irregularities not affecting merits. It also ruled that fraud allegations required impleading the issuing authority.

What did the court decide?

Impugned judgments and decrees dated 28.08.2023 and 02.05.2018 were affirmed. Second appeal dismissed.

Lrs of Late Ram Singh Vs Roop Singh — Property and Title | Rajasthan HC (2023)

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[2023:RJ-JD:33184]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Second Appeal No. 155/2023

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Lrs Of Late Ram Singh, Late Ram Singh Through His Lrs.

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1/1. Smt. Kusum Kanwar W/o Late Shri Ram Singh, Aged About 45 Years, By Caste Rajput, Resident Of Jay Ambe Colony, Chirghar, Behind T.b. Hospital, Jodhpur.

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1/2. Jaya D/o Late Shri Ram Singh, Aged About 22 Years, By Caste Rajput, Resident Of Jay Ambe Colony, Chirghar, Behind T.b. Hospital, Jodhpur.

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1/3. Mamta D/o Late Shri Ram Singh, Aged About 20 Years, By Caste Rajput, Resident Of Jay Ambe Colony, Chirghar, Behind T.b. Hospital, Jodhpur.

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1/4. Sawai Singh S/o Late Shri Ram Singh, Aged About 18 Years, By Caste Rajput, Resident Of Jay Ambe Colony, Chirghar, Behind T.b. Hospital, Jodhpur.

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1/5. Yuvraj Singh S/o Late Shri Ram Singh, Aged About 15 Years, Minor Through His Natural Guardian Mother Smt. Kusum Kanwar, By Caste Rajput, Resident Of Jay Ambe Colony, Chirghar, Behind T.b. Hospital, Jodhpur.

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----Appellants

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Versus

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Roop Singh S/o Shri Khet Singh, By Caste Rajput, Resident Of Jay Ambe Colony, Chirghar, Behind T.b. Hospital, Jodhpur.

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		----Respondent
For Appellant(s)	: Mr.	Rameshwar Hedau
For Respondent(s)	: Mr. Mr.	C.S. Kotwani assisted by Aman Bishnoi

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HON'BLE MS. JUSTICE REKHA BORANA

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Judgment

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04/11/2023

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The present second appeal has been preferred against the judgment and decree dated 28.08.2023 passed by the

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Additional District Judge No.5, Jodhpur Metropolitan in Civil Appeal No.22/18 whereby the judgment and decree dated 02.05.2018 passed by the Additional Civil Judge No.9, Jodhpur Metropolitan in Civil Suit No.02/16 (NCV No.13291/2014) has been affirmed.

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Vide judgment and decree dated 02.05.2018, learned Trial Court proceeded on to decree the suit as preferred by the plaintiff for permanent and mandatory injunction.

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It is relevant to note at this stage itself that, a counter claim was also filed by the defendant in the said suit qua which issue No.9 was framed. Although issue No.9 has been decided against the defendant, the operative portion of the judgment and decree dated 02.05.2018 does not make any mention of allowing or rejection of the counter claim. The first Appellate Court proceeded on to affirm the judgment and decree of the learned Trial Court but it too did not make any mention about the allowing or dismissal of the counter claim of the defendant. 3. Learned counsel for the appellant raised three grounds before this Court, firstly , the patta/lease in question on basis of which the plaintiff claimed his ownership was obtained by fraud and hence, the said document was void ab initio . It has been submitted that no decree could have been passed on basis of a fraudulent document and further that, even if no ground/counter claim for declaration of the said document to be void was raised/made, the same being void ab initio, could not have been relied upon by both the Courts below. In support of his submission, counsel relied upon the judgment passed in the case of Prem Singh & Ors. vs. Birbal & Ors., (2006) 5

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SCC 353 . Secondly , the learned Trial Court committed a serious illegality in not complying with the provisions of Order 13 Rule 4, CPC. The documents as exhibited do not bear the signature of the Presiding Officer which is a mandate in terms of provisions of Order 13 Rule 4, CPC. Hence, because of the said illegality, the documents as exhibited could not have been read in evidence. Thirdly , as the impugned judgment and decree does not reflect anything about the result of the counter claim as preferred by the defendant, the same is a nullity and deserves to be set aside on this count alone.

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Per contra, in response to the arguments raised by learned counsel for the appellant, learned counsel for the respondent submitted as under:-

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i) It was nowhere the case of the appellant that the document i.e. patta/lease in question was a forged document. The only averment raised by the plaintiff was that the said patta has been obtained dehors the law and hence, is invalid. The ground that the patta is forged has been raised for the first time before this Court and hence, cannot be entertained.

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Further, the plea regarding a document being invalid does not ipso facto make the same forged and hence, cannot be said to be void until and unless the same is proved to be so.

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ii) The averment of the plaintiff that the patta was obtained by fraud cannot also be considered in absence of impleadment of the authority issuing the said patta.

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iii) Once the plaintiff raise a plea of adverse possession, he is estopped from challenging the title of the defendant. It was the specific averment of the plaintiff himself that he is in

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possession of the property in question since last more than 12 years and hence, prayed for a decree in his favour on the basis of adverse possession. Since the said plea has been raised, it would be presumed that he has admitted the title of the defendant and hence, cannot be permitted to question the same.

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iv) So far as the ground of non-compliance of provision of Order 13 Rule 4, CPC and no order regarding the counter claim of the defendant having been made is concerned, both the grounds were not even raised by the appellant before the first Appellate Court. Even before this Court, the ground of the counter claim having not been decided has not been raised. Therefore, the same cannot be permitted to be raised at the stage of second appeal.

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v) Even if the ground of non-compliance of Order 13 Rule 4, CPC is to be considered, the same cannot be termed to be anything more than a mere irregularity and in terms of Section 99, CPC, the decree cannot be set aside just because of an irregularity.

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vi) So far as the non mentioning of the rejection of the counter claim in the judgment is concerned, the same also can be termed to be a mere omission as issue No.9 framed qua the counter claim was specifically decided against the defendant. The non mentioning of the same in the operative portion of the judgment is a mere omission. A decree cannot be set aside only because of an omission.

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In support of his contentions, counsel relied upon the Hon’ble Supreme Court judgments in Manti Devi & Anr. vs.

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Kishnu Sah alias Kishnuk Deo Sao & Ors., (2018) 12 SCC page 500 and Kiran Singh & Ors. vs. Chaman Paswan & Ors., AIR 1954 page 340 ; Hon’ble Delhi High Court judgment passed in Sudhir Engineering Company vs. Nitco Roadways Ltd. 1995 SCC Online Del 251: (1995) 34 DRJ 86.

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In rejoinder, learned counsel for the appellant submitted that non compliance of Order 13 Rule 4, CPC is not a mere irregularity and but it is an illegality and the illegality, if found, can be set aside by the Court at any stage.

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Heard learned counsel for the parties and perused the material available on record. 7. So far as the first ground raised by learned counsel for the appellant regarding the document being void ab intitio is concerned, the counter claim as filed by the defendant reads as under:-

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&%dkm.Vj Dyse%&

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“1- fd oknxzLr tk;nkn ftldk uki] iM+kSl fooj.k okni= ds in la[;k&2 esa fn;k x;k gS] ds Hkw&Hkkx dk iV~Vk la[;k&7@1999 fnukad 23&08&2002 oknh us fcuk dCtk ds ljdkjh ukSdjh esa jgrs gq, ljdkjh Hkwfe ij rFkkdfFkr dCtk crkdj ;w-vkbZ-Vh-tks/kiwj ds deZpkfj;ksa ls feykoV dj vkoaVu@vf/kdkj i= izkIr fd;k gS] tks xSj dkuwuh gSA

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2- fd dkm.Vj Dyse ds fy;s fcuk; nkok okn dk uksfVl izfroknh dks izkIr gksus ij ceqdke tks/kiqj iSnk gqvk ftldh ekfy;r cxtZ dksVZ Qhl ,oa vf/kdkj {kS= okLrs dkm.Vj Dyse fu;eu vkoaVu@vf/kdkj i= iVVk la[;k&7@1999 fnukad 23&08&2002 dh dher :i;s 2]578@& ij dk;e dh tkrh gS ftlij dksVZQhl okLrs fujLr djus fu;eu vkoaVu@vf/kdkj i= iVVk gsrq :i;s 171@& ds is”k gSA

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vr% tckcnkok] fo”ks’k mtj ,oa dkm.Vj Dyse is”k dj fuosnu gS fd oknh dk okn e; [kpkZ [kkfjt Qjekosa ,oa oknh ds i{k esa tkjh fu;eu vkoaVu@vf/kdkj i= la[;k&7@1999 fnukad 23&08&2002 fujLr Qjekosa ,oa vU; lgk;rk tks izfroknh ds i{k gks ikfjr QjekosaA

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izfroknh

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rLnhd%&

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eSa] jkeflag iq= Jh [ksrflag th] tkfr&jktiwr] mez 40 o’kZ] fuoklh&IyksV la[;k&07] t;vacs dkWyksuh] phj?kj Vh-ch- vLirky ds ihNs] tks/kiqj izfroknh] ceqdke tks/kiqj l”kiFkiwoZd rLnhd djrk gwa fd tokcnkok] fo”ks’k mtj o dkm.Vj Dyse esa of.kZr reke rF; esjs futh Kku o tkudkjh ds vuqlkj lgh o lR; gSA blds i”pkr~ esjs dkm.Vj Dyse dh izkFkZuk gS] ftldks eSa lgh gksuk lR;kfir djrk gwaA

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rLnhddRkkZ”

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A bare perusal of the above averments as made, makes it clear that the ground of the defendant before the learned Trial Court was that the plaintiff has obtained the patta in question by misrepresentation and collusion with the officers of UIT in spite of he a Government servant and not entitled to the said allotment and hence, the same is invalid. The pleadings further clarify that it was not the ground of the defendant that the patta in question is void or forged. The only averment of the defendant was that it has been obtained by misrepresentation and in connivance with the officers of the UIT which is invalid.

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It is the settled position of law that a party averring any document to be invalid is under an obligation/burden to prove the same. As concluded by the Courts below, the plaintiff miserably failed to prove the same. The Courts below observed that even if any fraud is alleged to have been committed, the

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same could only be against the authority/UIT issuing the same. Admittedly, UIT was not impleaded a party to the present suit by the plaintiff and neither was any application moved by the defendant for its impleadment qua his counter claim. In absence of the said authority, no finding qua the document could have been given and hence, the issue was concurrently decided against the defendant and rightly so. This Court does not find any illegality or perversity in the said finding so as to interfere with the same.

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The argument raised by learned counsel for the appellant that the fraud was committed not only against the department but also against the defendant who was in possession of the property and was tried to be evicted of the same on the basis of the said fraudulent document, does not hold much water.

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Firstly , there was no counter claim of the defendant for declaration in his favour or for a decree on basis of adverse possession. Secondly , even if the counter claim of the defendant would have been decreed and the patta of the plaintiff would have been cancelled, the same, cannot, ipso facto grant/create any right in favour of the defendant.

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This Court is of the clear opinion that the finding qua issue No.9 as arrived by both the Courts below is totally in consonance with law.

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So far as non-mentioning of the allowing/rejection of the counter claim in the operative portion of the judgment is concerned, a reading of the impugned judgment dated 02.05.2018 makes it clear that qua the counter claim of the

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defendant issue No.9 was very well framed which reads as under :-

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“ rudh la[;k&09 vk;k izfroknh dkmUVj Dyse ds :i esa oknh }kjk izkIr fd;s x;s fu;eu vkoaVu@vf/kdkj i= iV~Vk la- 7@1999 fnukad 23-08-2002 dks fujLr djus dk vf/kdkjh gS\”

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The said issue has very well been discussed and decided by the Court as under:-

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“pwafd iV~Vk vfLrRo esa gS] mls u ekus tkus dk dksbZ dkj.k ugha gS] ,slh fLFkfr esa mijksDr rudh izfroknh vius i{k esa lkfcr djus esa vlQy jgk] fygktk ;g rudh izfroknh ds fo:) r; dh tkrh gSA”

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Meaning thereby, the issue qua the counter claim of the defendant was framed and decided against the defendant after reaching to a specific finding on the same. True it is that the fact of the rejection of the counter claim of the defendant does not find any mention in the operative portion of the judgment. But then, it is also true that no ground qua the same was ever raised by the appellant before the first Appellate Court. Rather the specific pleadings of the appellant before the first Appellate Court were that the appeal is preferred against the decree passed in favour of the plaintiff and the rejection of the counter claim of the defendant. Meaning thereby, the appellant defendant accepted the factum of issue No.9 having been decided against him and his counter claim having been rejected. Interestingly, no ground qua the same has been raised even in the present second appeal.

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In the opinion of this Court, after an overall reading of the impugned judgment, the only conclusion which can be arrived

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at would be that the counter claim of the defendant had been rejected. The non-mentioning of the same in the impugned judgment can be termed to be nothing more than an omission. Had the same been pointed out before the first Appellate Court, the same would have been taken care of by the first Appellate Court. But as the same had not been pointed out/raised before the first Appellate Court, the same was not cured.

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The third ground as raised regarding the non-compliance of order 13 Rule 4, CPC does not also hold much water. The same was a mere irregularity as admittedly, the documents were exhibited and no objection regarding the documents being marked as exhibits was raised by the defendant at that point of time. Evidence has been led on those documents and after considering the same, the learned Trial Court reached to the findings.

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Further, the omission or irregularity, even if any, was on the part of the Presiding Officer. The said irregularity/omission on the part of the Presiding Officer would even otherwise not have changed/affected the decision on the issues as arrived by the Court. It is the settled proposition of law that any irregularity in any proceedings in a suit, not affecting the merits of the case, cannot be a reason to reverse or vary the decree or to remand the matter.

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Section 99 of the Code of Civil Procedure provides as

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under:-

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“No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder 1[or non-joinder] of parties or causes of action or any error, defect or irregularity in any

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proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court. Provided that nothing in this section shall apply to nonjoinder of a necessary party.”

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In the case of Lachhmi Narain Singh (D) through L.Rs. & Ors. vs. Sarjug Singh (Dead) through L.Rs. & Ors., [AIR 2021 SC 3873], Hon’ble Apex Court, while considering a similar situation held that had such objection been made at the relevant point of time, the District Judge who tried the case in the first instance, would probably have seen that the deficiency was supplied.

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In the specific opinion of this Court, the omission of not putting the initials on the exhibits by the Presiding Officer can be termed only to be an irregularity which would not in any manner affect the merits of the case. The documents having been exhibited in terms of law is not disputed.

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In the case of Kiran Singh & Ors. Vs Chaman Paswan & Ors., AIR 1954 page 340, Hon’ble Apex Court held as under:-

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“With reference to objections relating to territorial jurisdiction, Section 21 of the Civil Procedure Code enacts that no objection to the place of suing should be allowed byi an appellate or revisional court, unless there was a consequent failure of justice. It is the same principle that has been adopted in Section 11 of the Suits Valuation Act with reference to pecuniary jurisdiction. The policy underlying Section 21 and 99, C.P.C. and Section 11 of the Suits Valuation Act is the same namely, that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds , unless it had resulted in failure of justice and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not upon to consideration by an appellate court, unless there has been a prejudice on the merits. The contention of the appellants, therefore, that the decree and judgment of the District Court,

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Monghyr, should be treated as a nullity cannot be sustained under Section 11 of the Suits Valuation Act.”

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In view of the specific provision of Section 99, CPC and in view of the ratio as laid down by the Hon’ble Apex Court in the case of Kiran Singh (supra), this Court is of the specific opinion that the present matter having been tried by both the Courts below on merits and having been decided after giving findings on all the issues, the same cannot be interfered with at the stage of second appeal on the basis of a mere irregularity which even otherwise does not affect the merits of the matter in any manner.

¶98

In view of the above ratio as laid down by Hon’ble Apex Court and in view of the above observations, this Court does not find any ground to interfere with the findings as arrived by the Courts below. The impugned judgments and decrees dated 28.08.2023 & 02.05.2018 whereby the suit of the plaintiff has been decreed and the counter claim of the defendant has been rejected, are hereby affirmed.

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No substantial question of law arises in the present appeal and the same is therefore, dismissed .

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Stay petition and all pending applications, if any, also stand dismissed.

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(REKHA BORANA),J

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38-KashishS/-

Lrs of Late Ram Singh v. Roop Singh

Case brief

What is this about?

What did the court decide?

Lrs of Late Ram Singh v. Roop Singh

Case brief

What is this about?

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