SECOND APPEAL 2980 of 1984 on 30 August 1972

1. Shamlat Patties Med Singh, Inder Singh of Village Jawan, TehsilBallabgarh, District Faridabad, through Rang Lal son of Kharak Singh andothers.

......Respondents.

CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA

Present:Mr.Hemant Sarin, Advocatefor the appellant.

Mr.Gur Rattan Pal Singh, Advocatefor the respondents.

.....

RAM CHAND GUPTA, J.

1. Facts leading to the present Regular Second Appeal are asunder:

2. Respondent no.1-through respondent nos.2 to 6 filed a civil suitin representative capacity under Order I Rule 8 of the Code of CivilProcedure (hereinafter to be referred as the `Code') on behalf of co-ownersof shamlat patties Med Singh and Inder Singh of village Jawan againstpresent appellant-defendant no.1 and respondent nos.8 to 22 for possessionof land in dispute measuring 24 kanals 12 marlas, described in para 1 of theplaint.

3. It has been averred that shamlat patties Med Singh and InderSingh are owners of the land in dispute and there are numerous owners inthe said patties, who are having same interest. Hence, the present suit hasbeen filed in representative capacity under Order I Rule 8 of the Code.

4. Defendant nos.2 and 3, namely, Thakur Lal and Piara Lal hadsold the suit land owned by said patties to present appellant-defendant no.1-

Daya Chand, vide registered sale deed dated 5.9.1972, registered on11.9.1972 for alleged sale consideration of Rs.10,000/- on the basis of adecree dated 30.8.1972 obtained by them in Civil Suit No.542/1972 titled asThakur Lal and others vs. Lal Singh and others. Defendant nos.2 and 3 hadno right to alienate the land in dispute on behalf of the patties and hence thesaid sale is illegal, void and ineffective and not binding on the rights ofplaintiffs-patties. Decree dated 30.8.1972 is also void, illegal andineffective.

5. The said decree and the sale deed have been challenged on theground that no service was effected on all the owners/co-sharers of theaforesaid patties, as required by law and that no public advertisement of thesaid previous suit was made through publication and that the said previoussuit was collusive between Thakur Lal etc. and Lal Singh etc.; that saleconsideration allegedly received by defendant nos.2 and 3 was not paid tothe co-sharers of the patties; that no power of attorney can be given toindividual person through a suit and hence, defendant nos.2 and 3 were notcompetent to sell the suit land on behalf of all the co-sharers of the patties;and that defendant nos.2 and 3 were not competent to alienate more thantheir share in the suit land.

6. It is further averred that plaintiffs came to know of theimpugned sale and decree in June 1976 for the first time. On refusal ofdefendants to admit claim of plaintiffs-patties and to deliver possession ofthe suit land to them and to treat impugned sale and decree null and void,the present suit for possession was filed on behalf of all the co-sharers of theplaintiffs-patties.

7. Defendants contested the suit filed by the plaintiffs, inter alia,on the ground that the impugned judgment and the sale-deed are perfectlylegal and valid and hence, plaintiffs-patties are not owners of the suit landand that defendant no.1 (present appellant) has become owner in possessionof the same by virtue of the said decree and the sale-deed; that the plaintiffshave no locus standi to file the present suit; that the suit has not been filedas representative of all the co-sharers of the patties; that the proper servicewas effected on all the co-sharers in the previous suit under Order I Rule 8of the Code and they were duly represented by Lal Singh, Girdhar and Gyasiin that suit; that it is not necessary to publish the advertisement in the

newspapers; that there was no collusion between the parties of the previoussuit; that defendant nos.2 and 3 distributed the sale consideration ofRs.10,000/- amongst all the co-sharers of the patties; that defendant nos.2and 3 were duly authorized to execute the impugned sale deed; thatplaintiffs had knowledge and notice of the impugned sale and decree sincethe very beginning and hence, the suit is not within limitation; the suit isnot maintainable in the present form; that the suit is barred by principle ofres judicata and the suit has not been properly valued for the purpose ofcourt fee and jurisdiction.

8. In the replication, respondent-plaintiffs controverted the pleastaken by defendants in the written statement and re-asserted the assertionsmade in the plaint. From the pleadings of the parties, the following issueswere framed for adjudication by learned trial Court:

“1.Whether the plaintiffs are owners of the suit land asalleged? OPPalleged? OPP

2. Whether the decree dated 30.8.1972 in civil suit No.542of 1972 of the court of Sub Judge Ballabgarh Thakur Lal andothers v/s. Lal Singh and others is illegal, in-effective, void andnot binding on the plaintiffs as alleged? OPPof 1972 of the court of Sub Judge Ballabgarh Thakur Lal andothers v/s. Lal Singh and others is illegal, in-effective, void andnot binding on the plaintiffs as alleged? OPP

3. Whether the sale deed dated 11.9.1972 in favour ofdefendant no.1 is illegal, void and not binding on the plaintiffs,as alleged? OPPdefendant no.1 is illegal, void and not binding on the plaintiffs,as alleged? OPP

4. Whether the suit is barred by time? OPD5.Whether the suit is not maintainable in the present form?OPD5.Whether the suit is not maintainable in the present form?OPD

6. Whether the plaintiffs are estopped by their act andconduct from filing the present suit? OPDconduct from filing the present suit? OPD

7. Whether the suit is barred by the principle of res judicataas alleged? OPDas alleged? OPD

8. Whether the suit has not been properly valued forpurposes of jurisdiction and court fee? OPDpurposes of jurisdiction and court fee? OPD

9. Whether the plaint and vakalatnama have not beensigned by plaintiff no.4, if so, to what effect? OPDsigned by plaintiff no.4, if so, to what effect? OPD

10. Whether the plaintiffs 2 to 5 are not the representative ofthe parties in dispute as alleged in preliminary objection No.7the parties in dispute as alleged in preliminary objection No.7

of the w/s. If so, its effect? OPD

11. Relief.”

9. Parties adduced their evidence in support of their respectivecontentions before learned trial Court. Learned trial Court after hearingboth the parties and after going through the whole record, discussed issuenos.1 to 3 together and decided the same in favour of respondent-plaintiffsby holding that the plaintiffs continued to be the owners of the suit land andthat some of the defendants being co-sharers in the plaintiffs-patties arealso co-sharers in the suit land and that defendant no.1 (present appellant)has not become exclusive owner of the suit land. Impugned decree dated30.8.1972 was held to be illegal, ineffective, void and not binding on therights of the plaintiffs. Impugned sale deed dated 5.9.1972, registered on11.9.1972 executed vide Ex.DW5/a was also held illegal, void, and notbinding on the rights of the plaintiffs except to the extent of shares ofrespondent-defendant nos.2 and 3, who executed sale deed in favour ofdefendant no.1 (present appellant).

10. While discussing issue no.4, it has been observed by learnedtrial Court that the present suit has been filed for possession on the basis oftitle and hence limitation for filing the suit is 12 years under Article 65 ofSchedule attached to the Limitation Act. It was also observed that evenunder Article 58 of the Schedule, the period of limitation starts when theright to sue first accrues and that in the present case, it has been alleged andproved that plaintiffs came to know of the impugned decree and sale in June1976 and hence the period of limitation starts running from June 1976 andhence, the said issue was also decided in favour of the respondent-plaintiffsand against defendants.

11. While discussing issue no.5, it was observed that as theimpugned decree and sale deed are void, and hence, plaintiffs were notrequired to seek declaration for getting the same set aside and thatrespondent-plaintiffs could treat them as non-existent and hence, it was heldthat suit for possession as filed by respondent-plaintiffs is maintainable andthe said issue was also decided in favour of respondent-plaintiffs andagainst defendants.

12. While discussing issue no.6, it has been observed that Girdharis estopped from filing present suit because he is party to the previous suit

by name and however, other plaintiffs being co-sharers in the patties arehaving right to file the present suit in the representative capacity as theywere not served in the previous suit and hence, this issue was also decidedin favour of respondent-plaintiffs and against defendants.

13. While discussing issue no.7, it was held that decree is notbinding on the present plaintiffs as they were not validly sued inrepresentative capacity in previously instituted suit and hence suit is notbarred by res judicata. This issue was also decided in favour of respondent-plaintiffs and against defendants. However, it was held that Lal Singh,Girdhar and Giasi are bound by the previous decree as they were parties tothe previous decree.

14. While discussing issue no.8, it was observed by learned trialCourt that respondent-plaintiffs have not sought relief of declaration fordeclaring the impugned decree and sale deed as a nullity and more over, advalorem court fee on the market price of the suit land was paid and hence,this issue was also decided in favour of respondent-plaintiffs and againstdefendants.

15. Issue No.9 was also decided in favour of respondent-plaintiffsand against defendants.

16. While discussing issue no.10, it was observed that dueproclamation under Order I Rule 8 of the Code was made in the present caseand hence, the suit was properly filed in the representative capacity. Thesaid issue was also decided in favour of respondent-plaintiffs and againstdefendants.

17. As a sequel to findings on various issues, learned trial Courtdecreed the suit filed by respondent-plaintiffs for joint possession of the suitland described in para 1 of the plaint, leaving the parties to bear their owncost.

18. Aggrieved against the said judgment and decree, appeal wasfiled by present appellant-defendant no.1-Daya Chand and other defendantsbefore learned Additional District Judge- II, Faridabad, who dismissed theappeal with the modification to the extent that the suit of respondent-plaintiffs was decreed regarding the suit land except shares of Lal Singh,Girdhar and Giasi, who were parties to the previous suit.

19. Aggrieved against the said judgment and decree passed by

learned First Appellate Court, the present regular second appeal has beenfiled by Daya Chand, appellant-defendant no.1.

20. I have heard learned counsel for the parties and have gonethrough the whole record carefully.

21. It has been contended by learned counsel for the appellant thatthe present suit for mere possession is not maintainable without there beinga prayer for setting aside decree dated 30.8.1972 and registered sale deeddated 11.9.1972 in favour of the appellant. It is also contended that the suitalso could not be decreed qua share of present respondent nos.8 and 9, i.e.,defendant nos.2 and 3, who had executed the sale-deed in favour of presentappellant. It is also contended that in view of statements of one of theplaintiffs and by Hira Lal that he did not want to proceed with the suit,illegality has been committed by learned both the Courts below bydecreeing the suit. Hence, it is argued that judgment and decree passed byboth the Courts below are illegal and perverse. He has also prayed forframing of the following substantial questions of law on the plea that thesame arise for consideration in this second appeal:- “1.Whether the courts below could decree the suit of theplaintiff-respondents without there being a prayer therein forsetting aside the decree dated 30.8.1972 and the registeredsale deed of 11.9.1972 in favour of the appellant?

2. Whether in view of the statement made on 28.10.1981by Hira Lal, one of the plaintiffs, that he did not want toproceed with the suit, the Court below could have still decreedthe same?by Hira Lal, one of the plaintiffs, that he did not want toproceed with the suit, the Court below could have still decreedthe same?

3. Whether the suit could be decreed qua the share ofrespondent nos.8 and 9 who had executed the sale deed infavour of the appellant?respondent nos.8 and 9 who had executed the sale deed infavour of the appellant?

4. Whether the judgments and decrees of the Courts beloware perverse?are perverse?

22. On the other hand, it has been argued by learned counsel for therespondent-plaintiffs that earlier decree and the sale-deed were null andvoid and the same was result of collusion between the parties to the decreeand the sale-deed just to deprive all the co-sharers of the plaintiffs-pattiesfrom the enjoyment of the land in dispute, as co-owners in possession.

Hence, it is contended that no substantial question of law arises in thisregular second appeal for consideration by this Court. 23.At the time of admission of this appeal by Coordinate Bench ofthis Court on 18.4.1985, no substantial question of law was framed.However, now an application under Section 151 of the Code was filed onbehalf of appellant-defendant no.1 for framing of substantial questions oflaw, as aforementioned.

24. Law has been settled by Full Bench of this Court in DayalSarup v. Om Parkash (since deceased) through L.Rs and others (2010-4)160 PLR 1, that this Court can formulate question of law as contemplatedunder Section 100 of the Code at any point of time before hearing of theappeal, even without amending the grounds of appeal. It has also been heldthat it is the duty of the court to formulate substantial question of law whilehearing the appeal under Section 100(4) and 100(5) of the Code andquestion of law can be permitted to be raised at any stage of proceedings.25.Hence, in view of the legal proposition settled in theaforementioned judgment of Full Bench of this Court, it is duty of thisCourt to frame substantial question of law and the same can be framed atany time before hearing of the appeal.26.Taking into consideration the aforementioned facts andcircumstances of the case, I am of the view that the following substantialquestions of law arise for adjudication in this appeal.

“1.Whether the Courts below could decree the suit ofrespondent-plaintiffs without there being a prayer therein forsetting aside the decree dated 30.8.1972 and sale deed dated11.9.1972 in favour of the appellant.2.Whether the suit could be decreed qua the share ofrespondent nos.8 and 9, i.e., defendant nos.2 and 3, who hadexecuted the sale deed in favour of the appellant.”27.So far as filing of previous suit by present respondent nos.8 and9, i.e., defendant nos.2 and 3 against Lal Singh, Girdhar and Giasi, asrepresentatives of plaintiffs-patties under Order I Rule 8 of the Code isconcerned, defendant nos.2 and 3 in order to succeed in the said suit inrepresentatives capacity on behalf of all the co-sharers of the patties wererequired to seek permission of the Court and the notice was to be given to

all the parties whom it is proposed to represent in the suit and if the saidessential condition was not fulfilled, the suit could not be stated to be in arepresentative capacity on behalf of all the co-sharers of the patties. For thisview reliance is placed upon a Division Bench judgment of this Courtrendered in Jai Narain and others v. Chandgi Ram and others1977 PLJ527, relevant paragraphs of which read as under:-

“3.The scope of Order 1, Rule 8 of the Code is, that with thepermission of the Court, a number of persons having sameinterest in the suit, can sue or be sued by one or more of them,on behalf of themselves. The conditions for the applicability ofthis rule are:-permission of the Court, a number of persons having sameinterest in the suit, can sue or be sued by one or more of them,on behalf of themselves. The conditions for the applicability ofthis rule are:-

(i) the parties must be numerous;

(ii) they must have the same interest in the suit;(iii)the Court's permission under the rule must beobtained; and(iii)the Court's permission under the rule must beobtained; and

(iv) notice must be given to the parties whom it isproposed to represent in the suit.proposed to represent in the suit.

4. The obtaining of judicial permission is an essentialcondition for binding persons other than those actually partiesto the suit and their privies. If this essential condition is notfulfilled, the suit cannot be said to be a representative one.The proper course is to obtain permission before the suit isinstituted.”

28. In the present case, summons issued in the previously institutedsuit, copy of which is Ex.DW2/1, shows that such summons were not issuedto the persons mentioned in the list attached with the application underOrder I Rule 8 of the Code. Summons either in person or by way ofsubstituted service, i.e., munadi or publication were to be served on all theco-sharers as mentioned in the list attached with the application filed underOrder I Rule 8 of the Code and the summons were to be ordered to beserved personally on the alleged representatives, i.e., Lal Singh, Girdhar andGiasi, who were made parties in their individual capacity as well. However,it has been observed by learned trial Court that summons were issued in thiscase to Lal Singh, Girdhar and Giasi only by way of munadi and summonswere not issued for their personal service and no summon at all was issued

to co-sharers of the patties, as per the list attached with the plaint. Hence,the order of learned trial Court of that suit for service of all the co-sharers ofthe patties by way of munadi was not complied with. The said three personson whom service was effected were served as co-sharers of the aforesaidpatties and not representatives of all the co-sharers of the patties.

29. Perusal of Ex.DW2/1 shows that munadi was made for serviceof Lal Singh, Girdhar and Giasi only and not for service of all the co-sharersof the Patties. It has also been rightly observed by learned trial Court thatno permission was obtained of the Court for filing the suit in arepresentative capacity and hence it was rightly held that the impugneddecree passed in previously instituted suit is null and void and not bindingon all the co-sharers of the patties, who were not parties to the said decree.

30. It has also been rightly observed by learned trial Court thateven in the plaint of previously instituted suit, it was averred by defendantnos.2 and 3 that though all the co-sharers of the aforesaid patties haveauthorised them to sell the suit land on their behalf by executing necessarysale-deed on behalf of co-sharers and however, a few days later some of theco-sharers refused to adhere to the said decision and authority given tothem to sell the land on behalf of all the co-sharers of the patties wasimpliedly revoked and hence on this ground as well it cannot be said thatdefendant nos.2 and 3 were authorised to execute the sale-deed on behalf ofall the co-sharers of the patties. It has also been rightly observed thatauthority to alienate immovable property cannot be orally given to anindividual and that the said authority had to be given through writtendocument as per the provisions of Power of Attorney Act and hence thealleged oral authority given by all the co-sharers to defendant nos.2 and 3to sell the land belonging to plaintiffs-patties on behalf of all the co-sharersof the patties, cannot be said to be a valid authority. Hence, on this groundas well defendant nos.2 and 3 were not competent to sell the land of theplaintiffs to defendant no.1, i.e., present appellant.

31. There is another aspect of this case as well. One of thevendors, i.e., defendant no.3 is none else than real uncle of defendant no.1-present appellant in whose favour sale was effected. It is a very suspiciouscircumstance and there is force in the argument of learned counsel for therespondent-plaintiffs that the previous suit as well as sale-deed was a result

of collusion between the parties to the previous suit and the sale-deed. 32.There is another aspect of this case as well. As per order I Rule8(4) of the Code, no compromise/agreement can be recorded inrepresentative suit under Order XXIII Rule 3 of the Code, unless noticethereof has been given to all the interested persons. The impugned decreein the previously instituted suit was based on the basis of admission ofalleged representatives. The said admission amounted to agreement orcompromise and hence, the same could not form basis of a valid decreebecause no notice of the same was given to interested persons, i.e., all theco-sharers of the plaintiff-patties, as required under Order I Rule 8(4) of theCode.

33. In the impugned sale-deed, there is recital that saleconsideration of Rs.10,000/- was already paid. Hence, nothing was paid atthe time of registration of the sale-deed. A plea was taken that receipt wasexecuted by defendant nos.2 and 3 in favour of defendant no.1 in token ofreceipt of sale consideration. However, no such receipt was proved. Nosuch evidence was also adduced that the alleged sale consideration wasdistributed amongst all the co-sharers of the patties. Contradictory standswere taken by witnesses of defendants on the point and hence, it wasrightly held by learned Courts below that payment of sale consideration hasnot been proved and that on this ground as well, the impugned sale cannotbe said to be a valid one.

34. It has been vehemently argued by learned counsel for theappellant that suit for mere possession is not maintainable without seekingdecree for declaring impugned decree-sheet in previously instituted suit andthe sale-deed as invalid and that without challenging the decree and thesale-deed, suit for mere possession cannot be decreed in favour ofrespondent-plaintiffs.

35. On this point, he has placed reliance upon Nagappan v.Ammasai Gounder and others (2004) 13 Supreme Court Cases 480andVishwambhar and others v. Laxminarayan (Dead) through LRs andanother (2001) 6 Supreme Court Cases 163.

36. I have carefully gone through both the aforementionedauthorities. However, both the aforementioned cases pertain to sale ofproperty of a minor without obtaining permission of the Court under Section

8(2) of the Hindu Minority and Guardianship Act, 1956 (hereinafter to bereferred to as the `Act'). Sale of property owned by a minor by his guardianwithout seeking permission under Section 8(2) is not void, and however, thesame is voidable at the instance of the minor, who is having right to get thealienation set aside, if he wants to avoid the transfer and recover theproperty from the purchasers after attaining the majority. Hence, none ofthe said authorities are applicable to the facts of present case.

37. In the present case, as already discussed above, the impugnedjudgment and decree passed in previously instituted suit and subsequentsale-deed executed in favour of present appellant-defendant no.1 are nulland void being result of collusion between the parties to the previouslyinstituted suit and the parties to the sale-deed. Sale-deed in favour ofappellant-defendant no.1 cannot be said to be validly executed on behalf ofall the co-sharers of the patties, who are admittedly owners of the land indispute and hence, when the sale-deed itself is void, having not beenexecuted by all the co-owners, all the co-owners of the patties are not boundby the said decree and the sale-deed and hence, they are not required to seekdeclaration that the same are null and void. Rather, the same can be takenas null and void and suit for mere joint possession is maintainable on thebasis of title.

38. Hence, substantial question of law No.1, as framed above, isdecided in favour of respondent-plaintiffs and against present appellant-defendant no.1.

39. However, there is force in the argument of learned counsel forthe appellant-defendant no.1 that learned Courts below should not havedecreed the suit of respondent-plaintiffs qua share of present respondentnos.8 and 9 (defendant nos.2 and 3) who were parties to the previouslyinstituted suit and who had executed the impugned sale deed in favour ofpresent appellant-defendant no.1.

40. Learned trial Court has also observed that sale-deed executedby defendant nos.1 and 2 in favour of present appellant-defendant no.1 isbinding upon them. Hence, the impugned judgment and decree qua land indispute to the extent of share of defendant nos.2 and 3, i.e., presentrespondent nos.8 and 9 cannot be sustained in the eyes of law.

41. As a sequel to my above discussion, there is no merit in the

present appeal. The same is hereby dismissed with no order as to costexcept that judgment and decree is modified to the extent that the suit ofrespondent-plaintiffs for joint possession is decreed regarding suit landexcept shares of Lal Singh, Girdhar, Giasi, Thakar lal and Piare Lal.

4.2.2011meenu

(Ram Chand Gupta)Judge

Note: Whether to be referred to Reporter? Yes/No.

4.2.2011

(Ram Chand Gupta)Judge