High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .

RSA No.287 of 2004

Reserved on 29.10.2014.

Decided on: 10.11.2014.

Ram Lok ……Appellant.

Versus

Nand Ram & others …….Respondents.

Coram

The Hon’ble Mr. Justice Rajiv Sharma, Judge.

Whether approved for reporting?

1

Yes.

For the appellant: Mr. Rajnish K. Lall, Advocate.

For the respondents: Mr.N.K.Thakur, Sr. Advocate, with Mr. Rohit

Bharoll, Advocate, for respondents No. 1 to 3 & 6.

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Justice Rajiv Sharma, J.

This regular second appeal is directed against the

judgment and decree of the learned District Judge, Una, dated

5.5.2004 passed in Civil Appeal No. 68 of 2002.

2. Key facts, necessary for the adjudication of this

regular second appeal are that the respondents-plaintiffs

(hereinafter referred to as the plaintiffs, for the convenience sake),

filed a suit for declaration to the effect that the plaintiffs alongwith

proforma defendants are owner-in-possession to the extent of

34749 shares and tenant in possession to the extent of 3395

shares under defendant No. 2 over the land measuring 0-80-15

hectares, comprised in Khewat No. 238, Khatauni No. 401, Khasra

Nos. 644 and 645 as per Misal Haquiat Settlement for the year

1986-87 and the change of the revenue entries in the name of

defendant No. 1 as non-occupancy tenant and subsequent order

1

Whether reporters of the local papers may be allowed to see the judgment? Yes.

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dated 10.6.1985 of Assistant Collector, IInd Grade, Amb

sanctioning mutation No. 971 of proprietary rights in the name of

defendant No. 1, were absolutely wrong, false, baseless, illegal and

without jurisdiction and contrary to the provisions of H.P. Tenancy

and Land Reforms Act and Rules with a consequential relief of

permanent injunction restraining the defendant No. 1 from

interfering in any manner or raising any sort of construction and

cutting trees from the suit land.

3. The suit land was coming in possession of the plaintiff

and proforma defendant Nos. 3 to 5 since the time of ancestors as

non-occupancy tenants under Shri Bhagat Singh etc. owners on

payment of rent and after coming into force of H.P. Tenancy and

Land Reforms Act, the plaintiff had become owner to the extent of

34749 shares and tenant in respect of 3395 shares under the

defendant No. 2 who is widow. Earlier the old Khasra No. of the

suit land was 284 which was converted into new Khasra No. 293

during consolidation and thereafter the suit land was denoted by

Khasra No. 644 and 645 during settlement operation. The

defendant No. 1 with the connivance of the revenue staff got

changed the entries of the suit land in his name as non-occupancy

tenant and also got sanctioned mutation No. 971 of proprietary

rights from Assistant Collector, IInd Grade, Amb. On 10.6.1985.

4. The suit was contested by defendant No. 1, namely

Ram Lok. He filed the written statement. According to him, the

suit land was coming in his possession as non-occupancy tenant

on payment of rent to the owners since June, 1970 and now under

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the provisions of H.P. Tenancy and Land Reforms Act, the

defendant has become owner vide mutation No. 971 dated

10.6.1985. The defendant Nos. 2 to 5 despite service did not

appear and they were proceeded ex-parte in the trial Court.

5. The plaintiffs filed replication to the written statement

filed by the defendant. The issues were framed by the learned Sub

Judge (Ist Class), Amb. The learned Sub Judge (Ist Class), Amb,

decreed the suit on 27.6.2002. The defendant Ram Lok filed an

appeal against the judgment and decree dated 27.6.2002 before

the learned District Judge, Una. The learned District Judge, Una,

dismissed the same on 5.5.2004. Hence, this regular second

appeal .

6. The regular second appeal was admitted by this Court

on 16.3.2005 on the following substantial questions of law:

“1. Whether the Civil Court had jurisdiction to try

the suit as framed for correction of entries and setting

aside the order confirming the ownership rights on the

appellant under the provisions of H.P. Tenancy and

Land Reforms Act?

2. Whether on a proper construction of H.P.

Tenancy and Land Reforms Act, the onus to disprove

the tenancy of the appellant which lay on the plaintiff

was discharged and the court below mis-directed in

directing the appellant to establish his tenancy?

3. Whether the judgment of the Court below is

vitiated as the suit had abated because of the death of

defendant No. 3 Prabhu and which question of

abatement could only be decided by the trial Court

where abatement had occurred?”

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7. Mr. Rajnish K. Lall, Advocate, on the basis of

substantial questions of law framed, has vehemently argued that

the Civil Court had no jurisdiction to try the suit. He then

contended that the plaintiffs have not become owners. The suit

had abated because of the death of defendant No. 3 Sh. Prabhu

and this question could only be tried by the trial Court where the

abatement had occurred. On the other hand, Mr. Naresh Thakur,

Sr. Advocate, has supported the judgments and decrees passed by

both the Courts’ below. In addition thereto, he has referred to the

order passed by the learned District Judge on 13.6.2003 in CMA

No. 52 of 2003.

8. I have heard the learned Advocates for the parties and

gone through the records of the case carefully.

9. Since all the questions of law are inter-related, hence

in order to avoid repetition of evidence, these were taken up

together for discussion.

10. Now, as far as the question of abatement is concerned,

defendant No. 3 Sh. Prabhu has died on 9.12.1999. At the time of

death of Prabhu, the suit was pending before the trial Court. The

application for bringing on record the legal representatives of

Prabhu was filed under Order 22 Rule 4 CPC on 7.3.2003. The

application was contested. Sh. Prabhu was admittedly arrayed as

proforma defendant No. 3 by the plaintiffs in the suit. Defendant

No. 3 refused to accept the summons. Defendants No. 3 to 5 were

proceeded ex parte vide order dated 29.4.1993. No written

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statement was filed by proforma defendants No. 3 to 5. According

to the plaint, the plaintiffs have filed suit for declaration to the

effect that the plaintiffs alongwith the proforma defendants No. 3 to

5 were owner-in-possession to the extent of 34749 shares in the

suit land. The suit was filed for the benefit of proforma defendants

No. 3 to 5. No relief was sought against the proforma defendant

No. 3. Defendants No. 3 to 5 have not filed any written statement.

In view of this, death of proforma defendant No. 3 would not result

in abatement of the suit even if no application had been filed nor

permission as required under Order 22 Rule 4 (4) CPC was

obtained. Thus, the death of Prabhu i.e. proforma defendant No.

3 would not result in abatement of the suit or appeal, as argued by

Mr. Rajnish K. Lall, Advocate.

11. In the case of Sushil K. Chakravarty vrs. Tej

Properties Private Ltd., reported in (2013(9) SCC 642, their

lordships of the Hon’ble Supreme Court have held that when the

suit was allowed to proceed further, without insisting on the

impleadment of the legal representatives of ‘S’, it was done on the

Court’s satisfaction, that it was a fit case to exempt the plaintiff ‘T’

from the necessity of impleading the legal representatives of the

sole defendant ‘S’. Their lordships have held as under:

“31.3. A trial court can proceed with a suit under the aforementioned

provision, without impleading the legal representatives of a defendant,

who having filed a written statement has failed to appear and contest the

suit, if the court considers it fit to do so. All the ingredients of Order

XXII Rule 4(4) of the Code of Civil Procedure stood fully satisfied in the

facts and circumstances of this case. In this behalf all that needs to be

noticed is, that the defendant Sushil K.C. having entered appearance in

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CS (OS) no. 2501 of 1997, had filed his written statement on 6.3.1998.

Thereafter, the defendant Sushil K.C. stopped appearing in the said civil

suit. Whereafter, he was not even represented through counsel. The order

to proceed against Sushil K.C. ex- parte was passed on 1.8.2000. Even

thereupon, no efforts were made by Sushil K.C. to participate in the

proceedings of CS(OS) no.2501 of 1997, till his death on 3.6.2003.

31.4. It is apparent, that the trial court was mindful of the factual position

noticed above, and consciously allowed the suit to proceed further. When

the suit was allowed to proceed further, without insisting on the

impleadment of the legal representatives of Sushil K.C. it was done on

the court's satisfaction, that it was a fit case to exempt the plaintiff (Tej

Properties) from the necessity of impleading the legal representatives of

the sole defendant Sushil K.C. (the appellant herein). This could only

have been done, on the satisfaction that the parameters postulated under

Order XXII Rule 4(4) of the Code of Civil Procedure, stood complied.

The fact that the aforesaid satisfaction was justified, has already been

affirmatively concluded by us, hereinabove.

31.5. We are therefore of the considered view, that the learned Single

Judge committed no error whatsoever in proceeding with the matter in

CS (OS) no.2501 of 1997 ex-parte, as against the sole defendant Sushil

K.C., without impleading his legal representatives in his place. We

therefore, hereby, uphold the determination of the learned Single Judge,

with reference to Order XXII Rule 4(4) of the Code of Civil Procedure.”

12. Similarly in the case of Mata Prasad Mathur versus

Jwala Prasad Mathur and others, reported in (2013) 14 SCC

722, their lordships of the Hon’ble Supreme Court have held that

in order to expedite process of law, courts may exempt plaintiff

from substituting LRs of a defendant who failed to appear or

contest the suit. Their lordships have held as under:

“3. Having heard learned counsel for the parties, we are inclined to agree

with the order of the First Appellate Court that the suit had not abated no

matter for a reason different from the one that prevailed with that Court.

It is common ground that Virendra Kumar-defendant was proceeded ex

parte as he had not appeared to contest the suit or file a written statement.

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Substitution of the legal representatives of such a defendant could be

legitimately dispensed with by the trial Court in view of the provisions of

Order XXII Rule 4 Sub-Rule 4, which is as under:

“4. Procedure in case of death of one of several defendants or of sole

defendant.-

(1) xxxxx

(2) xxxxx

(3) xxxxx

(4). The court whenever it thinks fit, may exempt the plaintiff

from the necessity of substituting the legal representatives of any

such defendant who has failed to file a written statement or who,

having filed it, has failed to appear and contest the suit at the

hearing; and judgment may, in such case, be pronounced against

the said defendant notwithstanding the death of such defendant

and shall have the same force and effect as if it has been

pronounced before death took place.”

4. The High Court has, in our view, rightly noticed this aspect in its order

albeit the manner in which the High Court dealt with the same is not all

that satisfactory. Be that as it may, so long as the power of exemption

was available to the trial Court, the same could and ought to have been

exercised by the First Appellate Court while hearing an appeal assailing

the dismissal of the suit as abated.

…………………………………………………………………………

9. It would appear from the above that the Legislature incorporated the

provision of Order XXII Rule 4(4) with a specific view to expedite the

process of substitution of the LRs of non-contesting defendants. In the

absence of any compelling reason to the contrary the Courts below could

and indeed ought to have exercised the power vested in them to avoid

abatement of the suit by exempting the plaintiff from the necessity of

substituting the legal representative of the deceased defendant-Virendra

Kumar. We have no manner of doubt that the view taken by the First

Appellate Court and the High Court that, failure to bring the legal

representatives of deceased Virendra Kumar did not result in abatement

of the suit can be more appropriately sustained on the strength of the

power of exemption that was abundantly available to the Courts below

under Order XXII Rule 4 (4) of the CPC.”

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13. The learned Single Judge in the case of Bhagirath

Mal vrs. Bhagwan Dutt, reported in AIR 1996 Rajasthan 27,

held that the decree against a dead person is not nullity when

deceased-defendant had not filed written statement and had not

made legal appearance during pendency of trial and in fact the

trial has proceeded against him ex parte. It has been held as

follows:

“3. I have heard the learned counsel for the parties.

During the course of arguments it has not been

disputed by the learned counsel for the non-applicant

that no legal appearance had been made by the

deceased during the pendency of the trial and that the

learned counsel for the applicant-defendant had put in

appearance on behalf of the deceased also without

filing any Vakalatnama and that during the pendency

of the suit statement was made by the learned counsel

representing the applicant in the learned trial Court

that the written statement filed by the applicant-

defendant should be treated as the written statement

of the deceased-defendant as well, but the learned trial

Court had refused to treat the same as the written

statement of the deceased-defendant. The suit in

question had been filed by the non-applicant for

specific performance of the agreement to sell said to

have been executed by the deceased in his favour in

respect of the property in dispute which is said to have

been sold by the deceased to the applicant in violation

of the terms of the agreement and the defendant-

applicant had been put in possession of the property.

It is also the common case of the parties that the

property in dispute is situated in District Jhunjhunu

within the State of Rajasthan and the deceased was

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resident of the State of Bihar and that the sale deed in

favour of the applicant had been executed by a person

who had been given a Power of Attorney by the

deceased. The deceased-defendant not having made

appearance and the appearance having been made on

his behalf without any authority from him on the basis

of a memorandum of appearance and the counsel on

the basis of the said memorandum having not been

accepted as a duly appointed Advocate and because of

that fact the written statement filed by the applicant

was not taken as the written statement of the deceased

shows that, although, no specific order in this regard

was passed, proceedings against him were ex parte,

and in these circumstances, it cannot be said that it

was within the knowledge of either the plaintiff non-

applicant or the defendant-applicant that deceased

had died during the pendency of the suit and in these

circumstances this fact was not brought to the notice

of the learned trial Court who passed the impugned

decree. Even otherwise, in view of sub-rule (4) of Rule

4 of Order 22 of the Code of Civil Procedure it was not

obligatory, in the circumstances, for the plaintiff to

have brought on record the legal representatives of the

deceased during the pendency of the suit and as such

the appeal having been filed by the applicant

impleading the deceased as respondent No. 1 and the

report having been received that he had died, there

was no question of impleading his LRs as he had died

before the suit was decided and not during the

pendency of the appeal. In view of these facts, I am of

the view that it cannot be said that the appeal can be

said to have abated or that the decree passed by the

learned trial Court was nullity as no legal

representative had been brought on record.

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Consequently, I am of the view that the order dated 5-

11-1993 dismissing the appeal as having abated

should be recalled and appeal should be heard on

merits.

4. Consequently, while holding that neither the appeal

had abated nor the decree was nullity, the application

dated 25-4-1994 filed for recalling the order is allowed.

The order dated 5-11-1993 passed by me is recalled

and the appeal is restored with a direction that it

should be registered at its original number and be

placed before the regular Bench hearing first appeals.”

14. In Ram Sarup vrs. Chandra Bhan and ors.

reported in 1992 PLJ 179, the learned Single Judge has held that

when no relief was sought against the defendant who died, suit

would not abate and it is not necessary that all those who succeed

to estate must be made a party. It has been held as under:

“3. Mr. Sharma, learned counsel for the appellant

forcefully contended that the learned Courts below

have not at all applied their mind to the facts of the

case and inasmuch as Chandni was not a necessary

party to the litigation nor any relief was claimed

against her, her death could not entail dismissal of the

suit as having abated.

…………………………………………………………………….

5. After hearing the learned counsel for the parties,

I find sufficient force in the contention of Mr. Sharma,

learned counsel for the appellant. Plaintiff had

challenged the Will said to have been executed by

Nand Lal in favour of respondents No. 1 to 6. If the

suit was to be decreed, the benefit of the said

judgment would have been available to all those who

are entitled to succeed in the estate of Nand Lal. Even

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one of the successors without impleading others could

successfully maintain the suit. Although, it is true

that on declaration that the Will was a forged

document or that Nand Lal had not executed the Will,

the plaintiff alone would not succeed to the entire

estate but it cannot, as a necessary corollary, be held

that all those, who were to succeed to the estate must

have been made a party. As has been mentioned

above, no relief was claimed against Smt. Chandni and

for that reason as well, her death could not result into

abatement of the suit.”

15. Now, the Court would advert to the substantial

question of law whether the plaintiffs and proforma defendants No.

3 to 5 have become owners to the extent of 34749 shares and

tenant in possession to the extent of 3395 shares under defendant

No. 2 and also whether the change of revenue entry in favour of

defendant No. 2 was wrong including the order passed by the A.C.

IInd Grade, Amb, dated 10.6.1985 sanctioning mutation No. 971 of

proprietary rights in favour of defendant No. 1. It is admitted fact

that Bhagat Singh was the owner of the suit land and initially

Santu son of Mangu alongwith Sikh son of Bardu i.e. plaintiff was

recorded as a tenant over old Khasra No. 284 measuring 20 kanals

18 marlas on payment of rent as per jmabandi for the year 1945-

46, Ext. P11. These revenue entries were also repeated in the

subsequent jamabandis 1954-55, Ext. P-12, 1963-64 Ext. P-13

and 1968-69 Ext. P-14. The change in entry had taken place for

the first time in the jamabandi for the year 1973-74, Ext. P-1.

Ram Lok was recorded as tenant in respect of 10 kanals 9 marlas

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over Kh. No. 284 min. Initially, as per the remarks column of

jamabandi Ext. P-1, mutation regarding conferment of the

proprietary rights was ordered to be sanctioned in view of

notification in favour of the plaintiff and proforma defendants on

21.5.1976. The proprietary rights were to be given to the plaintiffs

only in respect of 17 kanals out of the land and share of widow co-

owner was to remain intact during her life time. In jamabandi for

the year 1984-85 Ext. P-2, Ram Lok during the course of

consolidation was shown to be tenant over old khasra No. 284,

new khasra No. 293 measuring 20 Kanals 18 marlas under the

ownership of Bhagat Singh. The name of the plaintiff was deleted

as tenant in jamabandi Ext. P-2 for the year 1984-85. The

jamabandi for the year 1986-87 Ext. P-3 prepared during the

course of settlement, suit land comprised in old Kh. No. 293 min

was denoted by new khasra Nos. 644 and 645 kita 2 measuring 0-

80-15 wherein defendant No. 1 Ram Lok was shown to be ‘ gair

marusi tenant’ except the share of Sita Devi widow.

16. PW-1 Ajit Kumar Patwari, has testified that the suit

land falls in his Patwar Circle. He has brought the record

pertaining to ‘khasra girdawari’ of the suit land from the year 1972

to 1979. According to him, the change of entry was reflected in

favour of defendant No. 1 firstly in rabi 1976, but there was no

order of any revenue officer regarding the change of entry nor there

was any mutation or rapat to this effect in the revenue record.

17. PW-2 Kewal Krishan, Patwari has produced ‘ register

karvai’ pertaining to the suit land alongwith ‘rapat roznamachas’.

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PW-3 Naresh Kumar, Patwari has deposed that there was no order

of any revenue officer regarding the change of entry as tenant in

favour of defendant No. 1. Sh. Nandu Ram has examined himself

as PW-4. He has supported the averments made in the plaint.

According to him also, no order was passed by the competent

authority for effecting change of entry in the suit land in the

presence of the recorded tenants i.e. plaintiffs. PW-5 Prem Chand

has supported the version of the plaintiffs.

18. According to DW-1 Ram Lok, Bhagat Singh was the

owner of the suit land. The suit land was given by the owners in

the year 1970 to him for the purpose of cultivation as tenant. He

was regularly paying rent to the owners since 1970. The plaintiff

Nandu was present on the spot when proprietary rights were

conferred upon him but no-objection was raised by him. He

admitted categorically that the suit land was partitioned and after

consolidation only khasra number of the suit land changed. He

has not filed any application regarding the correction of the

entries. The defendant has also examined Bhagat Singh co-owner

of the suit land. According to him, the defendant No. 1 was

cultivating the suit land as tenant since 1970.

19. There is no order of the Revenue Officer how the

change was effected showing defendant No. 1 Ram Lok as tenant in

the jamabandi for the year 1973-74 and also in jamabandi for the

year 1984-85, Ext. P-1 and P-2, respectively. The revenue entries

before 1973-74 were in favour of the plaintiffs. According to the

instructions issued by the Financial Commissioner, it is the duty

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of the Patwari before making any change in the existing entry at

the time of harvest inspection, to notify in writing to the person or

persons likely to be adversely affected by such a change of the

entries and retain on record proof of the notifications. The entries

are required to be attested by the ‘Lumberdar’ or ‘Panch’ of the

village concerned. The entries made in violations of these

instructions are null and void. The first entry was made in favour

of the plaintiffs and proforma defendants in jamabandi for the year

1945-46, Ext. P-11. The defendant has failed to prove how the

entries were changed in his favour without any order from the

competent authority. The plaintiff alongwith the proforma

defendants were recorded as tenants since 1945-46. These

entries, as noticed above, were changed abruptly in the jamabandi

for the year 1973-74. The plaintiffs have conclusive proof that they

are owners in possession of the suit property and the entries made

in favour of the defendant were wrong.

20. The dispute primarily is between the previously

recorded tenants i.e. plaintiff and proforma defendants on the one

hand and defendant No. 1 on the other, who was abruptly recorded

as tenant for the first time in the jamabandi for the year 1973-74.

The entries have been changed without hearing the plaintiffs. The

mutation was attested in their absence. The revenue authorities

have not followed the prescribed procedure for making changes in

the revenue entries. Thus, the civil Court has the jurisdiction to

adjudicate the matter regarding validity of the tenancy. The

Assistant Collector, IInd Grade, Amb was not competent to make

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correction of tenancy entry or conferring proprietary rights in

favour of defendant no. 1. The final order dated 10.6.1985 has

been passed by the Assistant Collector, IInd Grade, Amb, behind

the back of the plaintiff- Sikh Ram. It was in violation of the

principles of natural justice. In these circumstances, the

conferment of proprietary rights in favour of defendant No. 1 was

null and void. The plaintiffs were recorded as tenant on payment

of rent. The defendant No. 1 has failed to prove how the entries

were changed abruptly in his favour. The substantial questions of

law are answered accordingly.

21. Consequently, the appeal is dismissed.

November 10, 2014, ( Rajiv Sharma ),

(karan) Judge.

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