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Chhabil Das v. Pappu .
Factual and Procedural Background
Respondent 1 (Smt. Jarawali) filed a suit for permanent injunction to restrain the present appellant (defendant) from interfering with her alleged possession and cultivation of the suit land as a “gair marusi tenant.” She claimed to have inherited the land from her husband, Sagar, who died in June 1988. The appellant denied her possession, asserted his own possession, and stated that about 200 trees had been planted by him on the land. He also filed a counter-claim.
The trial court dismissed both the suit and the appellant’s counter-claim. An appeal to the District Judge and a subsequent second appeal were likewise dismissed.
During the pendency of the proceedings Smt. Jarawali died on 17-12-1994. On 4-8-1995 the trial court, acting under Order 22 Rule 5 of the Code of Civil Procedure, allowed an application substituting one Pappu as her legal representative on the strength of a registered adoption deed dated 3-12-1990. That substitution order went unchallenged and attained finality.
Legal Issues Presented
- Whether the appellant could, at the stage of second appeal (and before the Supreme Court), question the legality or validity of Pappu’s adoption by Smt. Jarawali after an unchallenged substitution order under Order 22 Rule 5 CPC had already recognised him as her legal representative.
- Consequentially, whether the alleged invalidity of the adoption impacted the merits of the injunction suit.
Arguments of the Parties
Appellant’s Arguments
- The widow, Smt. Jarawali, had no legal right to adopt Pappu; the adoption dated 28-11-1983 (registered on 28-10-1990) was therefore invalid.
- Because the adoption was invalid, Pappu could not represent Jarawali’s estate, and the suit for injunction should not have been decreed in favour of the plaintiff.
The opinion does not contain a detailed account of the respondent’s legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Bhanu Kumar Jain v. Archana Kumar (2005) 1 SCC 787 | Principle that res judicata applies at different stages of the same proceedings. | Used to support the view that the unchallenged substitution order under Order 22 Rule 5 CPC operated as res judicata and could not be re-opened in the appeal before the Supreme Court. |
| Ishwar Dutt v. Land Acquisition Collector (2005) 7 SCC 190 | Same principle of res judicata within continuing proceedings. | Cited for reinforcing that the question of legal representation, once decided, is final for subsequent stages. |
Court's Reasoning and Analysis
1. The Court noted that the trial court had already determined, under Order 22 Rule 5 CPC, that Pappu was the legal representative of the deceased plaintiff on the basis of the registered adoption deed and death certificate.
2. As that order was never challenged, it acquired finality. The appellant had an opportunity at that stage to contest the adoption but failed to do so.
3. Relying on the doctrine of res judicata as affirmed in Bhanu Kumar Jain and Ishwar Dutt, the Supreme Court held that the question of Pappu’s status could not be re-opened in second appeal or before the Supreme Court.
4. The underlying suit was one for injunction; issues regarding compliance with Sections 7 and 8 of the Hindu Adoptions and Maintenance Act, 1956 were never framed and, in the Court’s view, were irrelevant to determining possession for the injunction claim.
5. Consequently, the appellant’s contention that the adoption was “per se illegal” was deemed immaterial for purposes of the present appeal.
Holding and Implications
APPEAL DISMISSED. No order as to costs.
By affirming the finality of the substitution order, the Court prevented re-litigation of the legal-representative question and underscored that issues not raised at the proper procedural stage cannot be revived later. The decision has direct effect only on the parties; it sets no new precedent beyond the routine application of res judicata principles.
S.B Sinha, J.— Leave granted.
2. The appellant herein was a defendant in a suit filed by Respondent 1 herein for permanent injunction restraining him from interfering with possession and cultivation of the suit land which was said to be in possession of the plaintiff as a “gair marusi tenant”. She, allegedly, inherited the said property from her husband, Sagar, who died in June 1988. The appellant in his written statement, inter alia, denied and disputed the said contention and averred that the defendant was in possession of the land in question on the death of Sagar and they had planted about 200 trees on the suit land.
3. The defendant also filed a counterclaim. The suit as well as the counterclaim filed by the appellant was dismissed. An appeal preferred by the appellant in the Court of the District Judge was also dismissed. The second appeal preferred by him was also dismissed.
4. The question raised before the High Court as also before us, relates to legality and/or validity of the order of adoption of Pappu by Jarawali. It was pointed out that the adoption allegedly took place on 28-11-1983 whereas Sagar died in the year 1988, in the plaint, the plaintiff-respondent categorically stated that Sagar died issueless and a registered adoption deed regarding the purported adoption on 28-11-1983 was executed on 28-10-1990, which demonstrates that the purported adoption was not valid in law.
5. Submission of Mr R.K Kapoor, learned counsel appearing on behalf of the appellant was that having regard to the fact that the widow had no right to adopt Pappu, the suit could not have been decreed.
6. It is not in dispute that Jarawali died on 17-12-1994. Pappu filed an application representing her estate as a legal representative. By an order dated 4-8-1995, the said application was allowed, stating:
“2. On the other hand, the above application has been contested by the defendant-respondent having filed reply vide which it is admitted that plaintiff Smt Jarawali has expired, but no document regarding her date of death has been brought on record; that it is denied that applicant Pappu is the only legal representative of said deceased Smt Jarawali, so he is not entitled to be impleaded as plaintiff in the suit and lastly, it is prayed that the application in hand may kindly be dismissed with costs.
3. I have heard the arguments advanced by learned counsel for the parties and carefully gone through the record available on the file after giving my thoughtful and anxious consideration.
4. A bare perusal of the file reveals that no counter-affidavit has been filed by the defendant-respondent. Moreover, photostat copies of the registered adoption deed dated 3-12-1990 vide which applicant Pappu was adopted by Smt Jarawali, widow and her death certificate have been brought on record. Having a glance over these documents, I have no hesitation to say that Smt Jarawali has expired on 17-12-1994 at Mohalla Nalapur, Narnaul and Pappu, applicant is her only legal representative. So, he is entitled to be impleaded as a plaintiff. With these observations, I apparently do find a merit in the application in hand and the same stands allowed.”
(emphasis supplied)
The said order having not been questioned, indisputably, attained finality.
7. The question of substitution of Jarawali by Pappu, therefore, was in issue in a proceeding under Order 22 Rule 5 of the Code of Civil Procedure, 1908. Order 22 Rule 5 reads thus:
“5. Determination of question as to legal representative.—When a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the court:
Provided that where such question arises before an appellate court, that court may, before determining the question, direct any subordinate court to try the question and to return the records together with evidence, if any, recorded at such trial, its findings and reasons therefor, and the appellate court may take the same into consideration in determining the question.”
8. The appellant, therefore, did not deny or dispute that the respondent herein could represent the estate of Jarawali. When a question arose as to who is the legal representative of a party to the suit who had expired, the same was required to be determined in terms of Order 22 Rule 5 of the Code of Civil Procedure.
9. However, by reason thereof, the merit of the matter does not become final. The suit was one for injunction. No issue was framed nor could be framed therein as to whether the requirements of Sections 7 and 8 of the Hindu Adoptions and Maintenance Act, 1956 had been complied with or not. It is in that view of the matter, the learned trial Judge opined that the status of the respondent as an adopted son of Smt Jarawali could not be looked into in the said case.
10. Submission of Mr Kapoor that adoption of the respondent is per se illegal, in our opinion, has rightly been held by the learned trial Judge to be irrelevant for the purpose of determination of the issues in suit.
11*. If the respondent could represent the estate of original plaintiff and despite the fact that the appellant had an opportunity to raise the said issue at the stage of determination of the question as envisaged under Order 22 Rule 5 of the Code of Civil Procedure, the same having not been done, such a question cannot be permitted to be raised in the second appeal or before us for the first time.
12. It is now well known that the principle of res judicata also applies in different stages of the same proceedings. (See Bhanu Kumar Jain v. Archana Kumar (2005) 1 SCC 787 and Ishwar Dutt v. Land Acquisition Collector (2005) 7 SCC 190.)
13. Once, thus, the respondent was substituted in place of Jarawali, in our opinion, the question of reopening the said question by us does not arise.
14. For the reasons aforementioned, there is no merit in this appeal which is dismissed accordingly. No costs.
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