RSA/428/2001 of TARA CHAND Vs MEHAR CHAND on 30 December 2011

1. Shri Budh Ram son of shri Rup Dass, resident of Manali, Tehsil Manali, District Kullu, H.P. deceased through heirs and legal representatives: Manali, District Kullu, H.P. deceased through heirs and legal representatives:

1(a). Tara Chand son of Shri Budh Ram;

1(b). Khem Chand son of Shri Budh Ram;

1(c ). Budhi Devi wife of Shri Budh Ram; 1(d). Narvada Devi daughter of Shri Budh Ram and wife of Shri Panna Lal Thakur; Lal Thakur; All resident of village and Post Office, Old Manali, Tehsil Manali, District Kullu, H.P.

1(e). Smt. Vidhya Devi daughter of Shri Budh Ram Thakur, wife of Shri Jagat Pal Singh, resident of village Chhiyal, Tehsil Manali, District Kullu, H.P. Jagat Pal Singh, resident of village Chhiyal, Tehsil Manali, District Kullu, H.P.

2. Shri Balak Ram son of Shri Rup Dass, resident of Manali, Tehsil Manali, District Kullu, H.P. Manali, District Kullu, H.P.

3. Shri Tikam Ram son of Shri Rup Dass, resident of Manali, Tehsil Manali, District Kullu, H.P. Manali, District Kullu, H.P.

4. Shri Gokal Chand son of Shri Rup Dass, resident of Manali, Tehsil Manali, District Kullu, H.P. Manali, District Kullu, H.P.

5. Shri Dharam Chand son of Smt. Jiti widow of Shri Ruldu Ram, Sunshine Guest House, Log Huts Road, Manali, District Kullu, H.P. Sunshine Guest House, Log Huts Road, Manali, District Kullu, H.P.

6. Smt. Leela Devi daughter of Jiti, Sunshine Guest House, Log Huts Manali, Tehsil Manali, District Kullu, H.P. Manali, Tehsil Manali, District Kullu, H.P.

Appellants-defendants.

Versus

1. Shri Mehar Chand son of Shri Jogu Ram alias Jog Raj;

2. Shri Panna Lal son of Shri Jogu alias Yog Raj;

3. Smt. Gehri widow of shri Jogu alias Yog Raj;

4. Smt. Jogindra Devi widow of Shri Dharam Chand;

5. Ananaya Thakur daughter of Shri Dharam Chand; and

6. Kurum Dutt son of Shri Jogu Ram alias Yog Raj; All resident of village and Phati and Kothi Manali, District Kullu, H.P.

… Respondents-Plaintiffs.

Coram:

Hon’ble Mr. Justice V.K. Sharma, Judge.

Whether approved for reporting?[1]

For the appellants : Mr. K.D. Sood, Sr. Advocate with Mr. Sandeep Pandey, Advocate.

For the Respondents Mr. Karan Singh Kanwar, Advocate.

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

Justice V.K. Sharma, Judge (Oral).

Heard.

2. The appeal has been admitted for hearing on the following substantial questions of law:- following substantial questions of law:-

1. Whether the judgment of the District Judge is vitiated and is liable to be set aside having been passed in favour of dead person Dharam Chand who had died on 4.8.2001 long before the appeal was heard by the District Judge and without bringing on record his legal representatives? vitiated and is liable to be set aside having been passed in favour of dead person Dharam Chand who had died on 4.8.2001 long before the appeal was heard by the District Judge and without bringing on record his legal representatives?

2. Whether the judgment of the District Judge is passed on misconstruction and misreading of the pleadings of the parties and ignoring the evidence of the appellant on the plea of family partition and is liable to be set aside? passed on misconstruction and misreading of the pleadings of the parties and ignoring the evidence of the appellant on the plea of family partition and is liable to be set aside?

3.

Whether on the proper construction of the pleadings of the parties and the oral and documentary evidence, particularly statement of DW-1 Gokal Chand, DW-3 Finnu Ram, it was established that the defendants were the owner in possession of the property and Luddar Chand had been allotted the adjoining land which has been sold to the plaintiff and as such the defendant was entitled to construct on the suit land?

4. Whether even on the admitted case of plaintiff the defendant being not in possession of more land than his share and having raised costly construction, the decree for injunction could be granted when the defendant was in exclusive possession of the property and on partition the land in suit could be adjusted to the share of the defendant at the time of partition?

3. There is no denying the fact that Dharam Chand, appellant No.2 before the learned First Appellate Court had already died before the appeal was heard and the impugned judgment and decree dated 27.8.2001 were passed. It being so, the judgment and decree under challenge have been partly passed in favour of a dead person.

4. It is contended on behalf of the respondents that Smt. Gehri, who was appellant No.5 before the learned First Appellate Court and is mother of the said Dharam Chand, was already on record. However, the appellants contend that apart from the said Smt. Gehri, Dharam Chand deceased was also survived by other legal representatives including his wife and daughter, who were not brought on record in accordance with law, though they have been impleaded as parties to the present appeal for the sake of completion of record.

5. It is by now fairly settled that the question with regard to representation of legal representatives of a deceased party and abatement, if any, of the lis, has essentially to be considered by the Court in which the proceedings were pending at the time of death of the said party. In this case, such court was the court of the learned District Judge, Kullu, H.P.

6. In view of the above, the appeal is accepted. Consequently, the impugned judgment and decree dated 27.8.2001 shall stand set aside and the appeal remitted to the Court of the learned District Judge, Kullu, H.P. for disposal afresh from the stage of consideration of the question with regard to representation of the legal representatives of deceased appellant No.2, Dharam Chand before the said Court and abatement, if any, in accordance with law. The parties are directed through their learned counsel to appear before the Court of the learned District Judge, Kullu, H.P. on 21.2.2012. The records be sent back so as to reach the said Court well before the date fixed.

December 30, 2011. (cr)

(V.K. Sharma) Judge.