Shri Amarjit Singh & Others v. Smt. Pramod Gupta & Ors

N.N Goswami, J.:— This judgment will dispose of RFAs No. 309, 310, 356, 357, 340 and 341, all of 1980 All these appeals are directed against the judgment dated May 20, 1980 passed by the Additional District Judge, Delhi whereby the two references made to the Additional District Judge by the Land Acquisition Collector under Section 31 (2) of the Land Acquisition Act were decided. One reference was in respect of award No. 2040 involving 721 bighas and second reference was in respect of award No. 2225 involving 3945 bighas and biswas.

2. There were three sets of claimants before the Additional District Judge, The first set was of Gaon Sabha Masoodpur, The claim of Gaon Sabha was based on the allegations that the land in the awards was lying waste in the year 1950-1954 and as such it vested in the Gaon Sabha under orders of the Deputy Commissioner, Delhi in the year 1954, and thereafter by another order of the Deputy Commissioner, Delhi dated 10.3.1966 which was published in the official gazette of Delhi Administration. It was further pleaded that Gaon Sabha was in possession of the land in question at the lime of the announcing of the award and that the decree passed by the court of Shri A.N Aggarwal, Subordinate Judge Ist Class dated 12.12.1966 in suit No. 174 of 1966 and subsequently confirmed in appeal in favour of Smt. Gulab Sundri was without jurisdiction, ultra vires, null and void.

3. The second set of claimants was of proprietors. The proprietors also claimed compensation on more or less similar grounds and it was pleaded that the land in question was not the land as defined in Delhi Land Reforms Act; the land is in their holding: the bhumidari declaration made in favour of Smt. Gulab Sundri was invalid because the land was used for mining purposes and purposes other than those mentioned in Section 3(13) of the Act, and, therefore, Smt. Gulab Sundri and her transferees were not entitled 10 the award of compensation and the droprietors were entitled to receive the entire compensation

4. The third set of claimants was that of Smt. Gulab Sundri and her transferees. They claimed title to the land on the ground that the bhumidari declaration was made in favour of Smt. Gulab Sundri, proprietor of Kesar Singh Budh Singh who was a sub-tenant of the entire land of 4037 bighas and 18 biswas since the year 1942 as recorded in the revenue records and in particular during the fasli, 1953-1954 etc:, and that the ownership rights of the-proprietors/claimants stood abolished on the commencement of the Delhi Land Reforms Act and there were no proprietors or owners and as such no ownership rights could be claimed by any other person much less the proprietors/claimants as they were left with no right or interest etc, in the land.

5. Some of the owners/proprietors disputed the claim of Gaon Sabha in their written ssatements on the allegations that the land in question did not vest in the Gaon Sabha vide an order of the Deputy Commissioner dated 14 7.1958 because in the suit filed by them against the Gaon Sabha the learned subordinate Judge had declared that the order of the revenue assistant was wrong, illegal, ultra vires and without jurisdiction and that the suit land was not a waste land and further that Gaon Sabha had no right or interest of any nature in the suit land. The first appeal as also the second appeal filed by Gaon Sabha against the judgment and decree of the Subordinate Judge were dismissed and as such the claim of Gaon Sabha was barred by the principle of res-judicata. Similarly, the claim of owners was disputed by Smt. Gulab Sundri and her transferees/asamees on the picas that the bhumidari declaration in their favour was never challenged by the proprietors and the bhumidari declaration in her favour had became final and conclusive and on the commencement of the Delhi Land Reforms Act the rights of the prprietors had been abolished and no person could claim any right in the land as proprietors because there being only two clauses of tenure holders, namely, bhumidar and asamees. It was pleaded that the owner/proprietors did not fall in any of those two categories and as such they had no claim, right or title to the land, in question. The claim of Smt, Gulab Sundri and her transferees was disputed again on the grounds that the land in question was not land within the meaning as defined in Delhi Land Reforms Act and Punjab Tenancy Act. and that Smt, Gulab Sundri was not in possession of the land in question.

6. On the pleadings of the parties the learned Additional District Judge framed the Issues on 20th November, 1969 and additional issues on 7th March, 1970 and the issues were recast as under:—

(1) Whether the claim of Gaon Sabha Masoodpur is not barred by resjudicata,

(2) If issue No. 1 is not proved, whether Gaon Sabha has any right or interest in the land in dispute. If so, to what effect.

(3) Whether the declaration of the bhumidari rights and the issuance of the bhumidari certificate in favour of Smt. Gulab Sundri was illegal, void and without jurisdiction.

(4) Whether the alleged owners/bhumidars are legally barred from challenging and disputing the validity of the declaration of bhumidari certificates.

(5) Whether the provisions of the Delhi Land Reforms Act were not applicable to the land in dispute. If so, its effect.

(6) Whether the claims of the alleged owners/proprietors are barred by time.

(7) What are the rights and shares, if any, of the various respondents in the land in dispute.

(8) To what apportionment of the amount of compensation, if any, the respondents are entitled.

The additional issues framed on 7-11-1970 were as follows:—

(1) Whether the decrees of the civil courts passed in favour of Smt. Gulab Sundri and against Gaon Sabha or in favour of the owners are illegal, without jurisdiction and nullity. If so, to what effect.

(2) Whether the order dated 14-7-1978 passed by the revenue assistant operates as res-judicata.

(3) Whether the land in dispute was a waste land as defined in the Delhi Land Reforms Act and as alleged by Gaon Sabha, if so, its effect.

(4) Whether there were orders of the Deputy Commissioner dated 1-11-1954 and 10-3-1966 in respect of the land in dispute as alleged by Gaon Sabha and, if so, whether the same were violated, (objected to)

7. The parties led their evidence and the entire evidence was recorded in LAC No. 1/79 was consolidated with LAC 1/79. There had been various rounds of litigation between the Gaon Sabha and Smt. Gulab Sundri and between the proppritors and Gaon Sabha which terminated only in the Supreme Court. Certified copies of the various orders and judgments were placed on the record. While deciding the additional issues 1 and 2 as framed on 7-11-1970 the learned Additional District Judge recorded the following findings:—

“Accordingly, I hold that the judgment passed by the court of Shri A.N Aggarwal, S.J.I.C Delhi confirmed in appeal by the court of Shri Gian Chand Jain, Senior Subordinate Judge, Delhi, operates res judicata as between the Gaon Sabha and Smt. Gulab Sundri and the judgment pasted by the court of Shri V.S Aggarwal, S.J.I.C Delhi bars the claim made by S/Shri Pratap Singh. Des Raj Jain, Madan Gopal Gupta and Mahinder Kumar Bansal against Gaon Sabha Masoodpur, Kesar Pottery Works through Smt. Gulab Sundri and 27 others under Order 23 Rule 1 and sub-rule 4 of the Code of Civil Procedure”

The remaining two issues, that is, issue No. 3 and 4 as framed on 7.11.1970 were also decided against the Gaon Sabha.

Regarding the original issues framed the important issues are issue No. 3 and 5 which were taken up together. On consideration of the entire material on record and the settled law the learned Additional District Judge came to the conclusion that the land in question falls within the perview of Section 3(13) of the Delhi Land Reforms Act and Smt. Gulab Sundri was the tenant as defined in Section 4(5) of Punjab Tenancy Act which term has been defined as meaning a person who holds the land under another person, and is, or but for a special contract, would be, liable to pay rent for what land to the other person. With there findings the issues were answered in favour of Smt. Gulab Sundri and against the proprietors. In issue No. 4 it was found that Smt. Gulab Sundri had been rightly declared Bhumidar and the proprietors were legally barred from disputing the validity of the bhnmidari rights conferred in her favour. The remaining issues were also decided in favour of Smt. Gulab Sundri and finally Smt, Gulab Sundri and her transferees were found entitled to the entire compensation.

9. Dissatisfied with the aforesaid judgment passed by the learned Additional District Judge the proprietors have filed Regular First Appeals No. 309, 310, 356 and 357 of 1980 and Gaon Sabha has filed Regular First Appeals No. 340 and 341 of 1980.

10. During the course of arguments preliminary objection was raised by the learned counsel for the respondents to the effect that the appeals filed by the proprietors had abated inasmuch as various proprietors had died and their legal representatives were not impleaded on the record. In fact an application was filed by the respondents for this relief also. It was brought to the notice that appellant No. 19 in appeals No. 309 and 310 of 1980, namely, Shri Mukhtiar Singh died on 24.6.1982, appellant No. 31, Shri Chandgi Ram died on 1.4.1981, appellant No. 55 Shri Ami Chand died on 21.2.1984, appellant No. 56 Shri Chhelu died on 28 4.1983 and appellant No. 57 Shri Balbir died on 14.11.1985 The applications for impleading the legal representatives of the aforesaid deceased appellants were filed only on 2.3.1987 The sufficient cause for delay in filing the applications as pleaded was that the legal representatives of the deceassed appellants were not aware of the pendency of the appeals and they came to know about the pendency of the appeals on 20.2.1987 through Shri Hoshiyar Singh appellant No. 10 and Shri Devi Singh appellant No. 39. It was further stated that the said Shri Hoshiyar Singh and Shri Devi Singh disclosed the fact of the pendency of the appeals on being informed by their counsel on 19 2.1987 when the applications were filed by the respondents for holding that the appeals had abated. The same ground was taken in all the applications. Reply to the aforesaid applications was filed by the respondents. The allegations regarding the ignorance of the pendency of the appeals were disputed and various facts were brought on record to show that the appellants were very well aware of the pendency of the appeals. It was stated that all the appellants including the legal representatives of the deceased appellants were residents of the same village and in number of eases were even inter related. It was also pleaded that appellant No. 55 was 90 years of age and in fact the entire litigation was being looked after by his sons, who are educated and are government employees. It was further pleaded that the deceased appellants had other land in Masoodpur and in those proceedings the legal representatives got themselves substituted on record in place of the deceased appellant in the reference proceedings pending before Shri T.S Oberoi, Additional District Judge, Delhi. In support of this assertion a copy of the judgment/award was placed on record. The replies filed by the respondents were also supported by the affidavit of Shri Bhim Singh, who is one of the properitors alongwith the appellants and had been the Sarpanch of village Masoodpur and other neighbouring villages for a number of years. He has deposed in his affidavit that the legal representatives knew fully well about the pendency of the appeals right from the beginning and their allegations about the ignorance of pendency of appeals is false. It is worth nothing thot no rejoinder to the replies was filed by the appellants Dr. Sidhu, frankly conceded that no ground had been made out for condonation of delay in filing the applications for substitution and he was unable to press the same. He in fact argued only on the question of partial abatement as according to him each of the claimants was independent and should be treated as an appellant in his own appeal. The number of appellants should be taken to be the number of appeals. According to him all the claimants had specified shares and as such could lay their claim for their own share and as such the abatement could be only in respect of the deceased appellants. He, however, admitted that the entire khata was joint. The shares were defined but no partition had ever taken place and the khata remains joint. The specified shares were in joint khata.

11. The aforesaid objection was mainly in RFA 309 and 310 of 1980. In the other two appeals filed by the proprietors the additional objections were that all the proprietors of the joint khata who were parties and claimants before the Additional District Judge had not been impleaded as appellants or respondents was enclosed. According to the said list as many as 37 proprietors had not been impleaded. This fact was also not disputed by the learned counsel for the appellants and the contention was the same which is that each proprietor/claimant is concerned with his own share and as such it was not necessary to implead each and every person Some of those proprietors having filed no appeal against the impugned judgment of the Additional District Judge and were not impleaded as parties in the appeals and as such the judgment against them became final.

12. Now coming to the applications for impleading legal representatives and setting aside the abatement, admittedly all the applications were highly belated. The deceased appellants had died during 1981 and 1984. The applications were filed in March 1987. The only explanation furnished for condonation of delay and setting aside the abatement was that the legal representatives were not aware of the pendency of the appeals and they came to know about the pendency of the appeals only on February 20, 1987 through two of the appellants Shri Hoshiyar Singh and Shri Devi Singh. Admittedly Shri Hoshiyar Singh and Shri Devi Singh have not filed any affidavit in support of this assertion Replies to the applications were filed by the respondents. Various factors were pointed out to indicate that the appellants and/or the legal representatives of the deceased appellants were very well aware of the pendency of the appeal. It was pointed out that practically all the proprietors and the legal representatives of the deceased appellants were residing in the same village and some of them were inter related. It was also pointed out that in fact the appeals were being followed or persued by the legal representatives since the appellants were aged and infirm persons. Further the replies were supported by the affidavit of Sarpanch of the village who was also one of the proprietors and he had clearly sworn to the fact that the legal representatives of the deceased appellants were very well aware of the pendency of the appeals and they were coming to the court quite often. Various opportunities were given to the appellants to file rejoinders to the replies filed by the respondents but no rejoinders have been filed. Faced with this situation the learned counsel for the appellants frankly conceded that he could not support the application and the appeals qua the deceased appellants had abated. His contention was that the appeals had abated only qua the deceased appellants and the remaining appellants were entitled to continue with the appeals. Consequently the applications for impleading the legal representatives have necessarily to be dismissed and we ordered accordingly.

13. The next question that requires consideration is as to whether the appeals have abated only qua the deceased appellants or as a whole. The Supreme Court in Kishan Singh and others v. Nidham Singh and others Civil Appeal No. 563 of 1962 decided on December 14, 1964 observed:—

“It is well established that where such a conflict in decrees would result in respect of the same subject matter, the court should hold that the proceedings by way of appeal have abated in toto. As was held in The State Of Punjab v. Nathu Ram, 1962 (2) SCR 636, the consideration which weighs with the court in dealing with the question about the partial or complete abatement of the appeal is whether the success of the appeal may lead to the court's coming to a decision which will be in conflict with the decision between the appellant and the deceased respondent and, therefore, which would lead to the courr's passing a decree which wili be contradictory to the decree which had become final with respect to the same subject matter between the appellant and the deeeased respondent.”

Applying the aforesaid test when we look into the impugned judgment passed by the learned District Judge, it is clear that the findings are in respect of the class of proprietors as a whole on one side and the bhumidars on the other. Under the various issues as reproduced above it was held that the declaration of bhumidari rights and the issuance of the bhumidari certificate in favour of Smt. Gulab Sundri was legal, vaild and with jurisdiction. It was further held that the owners were legally barred from challenging and disputing the validity of the declaration of bhumidari certificate. It was further held that the provisions of Delhi Land Reforms Act were applicable to the land in dispute. It was also held that the decrees of the courts passed in favour of Smt. Gulab Sundri and against the Gaon Sabha were valid and with jurisdiction. It was further held that the land in dispute was not a waste land as defined in the Delhi Land Reforms Act and as such the orders of the Deputy Commissioner related 1-11-1954 and 10-3-1966 did not apply to the land in dispute. Thus, it is clear that the impugned decree proceeded on grounds common to all the appellants in order to succeed the appellants have to get the findings of vatious issues reversed and only then they can establish their claim. It is also an admitted fact that the khata has throughout remained joint though the appellants have specified undivided shares in the said khata.

14. The contention of the learned counsel for the appellants was that since the shares are defined the appeal would not abate in toto. This contention has again no merit. In The State Of Punjab v. Nathu Ram, AIR 1962 SC 89, the land belonged to two brothers and as is apparent from the judgment of the High Court in the said case the brothers owned land in equal shares. Thus, their shares were specified. One of the brothers died and it was held that the appeal against the other brother could not proceed. In paragraph 8 of the report it was observed:—

“The difficulty arises always when there is a joint decree. Here again, the consensus of opinion is that if the decree is joint and indivisible, the appeal, against the other respondents also will not be proceeded with and will have to be dismissed as a result of the abatement of the appeal against the deceased respondent. Different views exist in the case of joint decrees in favour of respondents whose rights in the subject matter of the decree are specified. One view is that in such cases, the abatement of the appeal against the deceased respondent will have the result of making the decree affecting hit specific interest to be final and that the decree against the other respondents can be suitably dealt with by the appellate Court. We do not consider this view correct. The specification of shares or of interest of the deceased respondent does not affect the nature of the decree and the capacity of the joint decree-holder to execute the entire decree or to resist the attempt of the other party to interfere with the joint right decreed in his favour. The abatement of an appeal means not only that the decree between the appellant and the deceased respondent has become final, but also, as a necessary corollary, that the appellate Court cannot, in any way, modify that decree directly or indirectly. The reason is plain. It is that in the absence of the legal representatives of the deceased respondent, the appellate Court cannot determine anything between the appallant and the legal representatives which may affect the rights of the legal representatives under the decree. It is immaterial that the modification which the Court will do is one to which exception can or cannot be taken.”

15. The aforesaid case has been cited with approval in various decisions of their Lordships of the Supreme Court including the case of Kishan Singh & others v. Nidham Singh & others (supra) and Rameshwar Prasad & others v. Shambehari Lal Jagannath and another, AIR 1963 SC 1901 and again in Ramgaya Prasad Gupta and others v. Murli Prasad and others, AIR 1972 SC 1181. In view of the aforesaid decisions of their Lordships of the Supreme Court it is not necessary to multiply the decisions and refer to certain other decisions of the Supreme Court and High Courts which were cited at the bar. We are, therefore, of the opinion that the appeal by the surviving appellants cannot be proceeded with as there was a common right and interest in getting the decree set aside. In case of the appeal by the remaining appellants being allowed, it will necessarily result in contradictory and conflicting judgments as the findings mentioned above which concern all the appellants will have to be disturbed.

16. The learned counsel for the appellants in RFA 356 and 357 of 1980 convassed that one of the respondent, namely, Ehsan-ullah had died during the pendency of the proceedings before the Additional District Judge in 1977 itself, and, therefore, the proceedings before the Additional District Judge had abated. It was not disputed that the said Ehsan-ullah had died in 1977 but all the same a decree in his favour was passed. When the decree was being executed by the legal representatives of the deceased, objections were raised regarding the death of Ehsan-ullah. The objections were overruled and the decree was executed in favour of legal representatives of Ehsan-ullah No appeal against the dismissal of objections was filed by any party. However, Ehsan-ullah was impleaded as a party in the present appeal. From the service report received in 1980 itself it was brought to the notice of the appellants that Ehsan-ullah had died but inspite of that no legal representatives were brought on the record. If any, adverse inference is to be drawn regarding the death of Ehsan-ullah it has to be against the appellants and not against the respondents. By now it is well settled that decree in favour of a dead person is not a nullity though it can be set aside in appeal. Thus, the death of Ehtan-ullah dots not in any way help the appellants rather it directly goes against the appellants because it was a duty of the appellants to implead the legal representatives of Ehsan ullah in appeal, which they failed to do.

17. The only other contention of the learned counsel for the appellants was that the proceedings were in the nature of inter pleader suits and as such there could be no question of the appeal having abated in toto. This, contention has again to be negatived for the reasons already stated above and in view of the various decisions of their Lordships of the Supreme Court referred to above. In fact a Full Bench of this Court in Chander and others v. Mauji and others, AIR 1989 Delhi 97 has held:—

“The provisions of Order 22, Civil Procedure Code apply to the appeals arising out of references under Sections 30 and 31 of the Land Acquisition Act.”

18. Now coming to the two appeals filed by the Gaon Sabha, various opportunities were given to the counsel for the Gaon Sabha to argue the appeals. The learned counsel, however, stated that according to his instructions a senior counsel had been engaged and he was not supposed to argue the appeals though the arguments continued before us for number of days but on every occasion the learned counsel refused to argue the appeals. In fact we find that in view of the litigation ground alone.

19. For the reasons recorded above we hold that RFA Nos. 309, 310, 356 and 357 of 1980 have abated and they cannot be proceeded with in the absence of all the proprietors being on record as the decree was common to all of them. As regards the other two appeals of the Gaon Sabha, namely, RFA Nos. 340 and 341 of 1980 the same also stand dismissed for the reasons already indicated above. In the circumstances, however, there will be no order as to costs.