V.K Shali, J.:— This is a regular second appeal filed against the judgment and decree dated 4.2.2008 passed by Mr. Rakesh Kumar Sharma, Senior Civil Judge, Delhi in RCA no. 226/2005.
2. Brief facts leading to the filing of the present regular second appeal by the appellants has a chequred history. Originally, the respondent/Balbir Singh filed a suit bearing No. 369/1986 against one Banwari Lal and Sh. Swaraj, sons of Sh. Lila Ram for declaration and permanent injunction.
3. The case set up by the respondent herein was that he was the owner of a parcel of land measuring 600 sq. yds. Bearing Plots No. 5, 6 and 7 out of Rect. No. 42, Kila No. 5/1 situated in the area of Village karawal Nagar, Delhi in the abadi of Prem Nagar Extn. Illaqua Shahdara, Delhi.
4. It was alleged that the aforesaid parcel of land was purchased by Banwari Lal on 25.9.85 from one Premlata and her husband Chander Prakash by getting power of attorney, etc. executed.
5. It was further alleged that after the purchase, the attorney of the appellant had constructed a boundary wall and a room on the said parcel of land. It was alleged that the appellant herein disputed the ownership of the respondent/Balbir Singh in respect of the said portion of land and accordingly, they claimed themselves to be the actual owners of the said parcel of land. On the basis of these pleadings between the parties, the trial court framed the following five issues:-
(i) Whether the plaintiff is actual owner of the suit property? OPP
(ii) Whether the defendants are owner of the suit property as alleged in the written statement? OPD
(iii) Whether the plaintiff is in possession of suit property? OPP
(iv) Whether the plaintiff is entitled to relief claimed? OPP
(v) Relief.
6. After the parties were permitted to adduce evidence, the suit of the respondent/Balbir Singh was dismissed on 13.02.1997
7. The respondent/Balbir Singh feeling aggrieved, preferred an appeal against the said order bearing RCA no. 21/2003, which was disposed of vide order dated 7.11.2003 by the learned ADJ, Delhi. The judgment and decree passed by the trial court was set aside and the matter was remanded back to decide the matter afresh.
8. The trial court considered the entire matter afresh and again dismissed the suit bearing No. 276/2004 of the respondent/Balbir Singh vide judgment dated 23.9.2005
9. The respondent/Balbir Singh again feeling aggrieved, preferred a fresh appeal bearing RCA No. 226/2005 against the said judgment and the decree of dismissal.
10. The Senior Civil Judge, Delhi by a judgment dated 04.2.2008, allowed the appeal of the respondent/Balbir Singh and the judgment and decree passed by the trial court dismissing the suit was set aside.
11. The respondent/Balbir Singh was successful in getting the decree of declaration passed in his favour that he is the owner and in possession of the said parcel of land and the LRs of the appellant no. 1 were purportedly restrained from dispossessing the respondent/Balbir Singh from the suit premises.
12. The LRs of the appellants herein feeling aggrieved preferred the present regular second appeal against the impugned judgment and decree passed vide order dated 4.2.2008 by the Sr. Civil Judge.
13. It has transpired that during the course of hearing the present second regular appeal was filed on behalf of the legal heirs of Banwari Lal as well as the appellant no. 2.Swaraj. The appeal is supported only by an affidavit of R-2.Swaraj dated 21.4.2008 It has also been brought to the notice of the Court that neither any Vakalatnama nor any affidavit of the legal heirs of the appellant no. 1, supporting the appeal, has been filed. As a matter of fact, it has been brought to the notice of the Court that though the impugned judgment was passed by the first appellate Court on 4.2.2008, but appellant no. 1.Banwari Lal had expired on 30.1.2006 that is almost 2 years prior to the date of the impugned judgment.
14. In these circumstances, it has been contended by the learned counsel for the respondent that as a matter of fact, the so called legal heirs of the appellant no. 1 ought to have filed an application for the substitution of the legal heirs of Banwari Lal who was the respondent in the appeal before the Sr. Civil Judge.
15. Having chosen not to do so within 90 days from the date of the death of Banwari Lal, the proceedings against Banwari Lal had abated during the pendency of the first appeal itself and it was not only improper but highly illegal on the part of the appellant no. 2 to have mentioned the names of the legal heirs of Banwari Lal to give an impression as if the appeal was purportedly filed on behalf of the legal heirs of Banwari Lal without there being any affidavit or vakalatnama signed by any of them or even no application under Order 22 Rule 3 CPC has been filed along with the appeal. Therefore, the contention of the learned counsel for the respondent in my opinion, has a considerable merit that so far as the appellant no. 1.Banwari Lal whose name is reflected through the LRs in the memo of parties is not an appellant before this Court.
16. So far as the appellant no. 2 is concerned, although the appeal was duly supported by the affidavit of Swaraj/appellant no. 2 but even the appellant no. 2 is stated to have expired on 2.12.2008 during the pendency of the appeal, it has been brought to the notice of the Court that on 6.8.09, this Court had passed an order dismissing the application under Order 22 Rule 3 CPC for substitution of the legal heirs of the appellant no. 2 on the ground that the proceedings against the appellant no. 2 had abated and there was no “sufficient cause” shown while filing an application u/O 22 Rule 3 CPC read with Section 5 of the Limitation Act.
17. Despite the order of abatement having been passed on account of non-bringing of the LRs of the appellant no. 2 on record, the matter was adjourned to 1.2.2010 for consideration on the formulation of the substantial question of law if any, by my learned Predecessor. It seem that this was an inadvertent mistake on the part of this Court to have adjourned the matter on the wrong assumption for the simple reason that so far as the appellant no. 1 is concerned, the appeal continues while as, he had died prior to the institution of the present appeal itself and his legal heir ought not have been reflected as parties in the memo of parties as neither there was any affidavit by any of them nor any vakalatnama was signed by them. Since the name of the appellant no. 1.Banwari Lal was shown in the memo of parties through the legal heirs, therefore, it seems that the Court had an impression that the death of the appellant no. 2 did not result to any abatement of the appeal because there was another appellant on record. Later on the appeal itself was dismissed for non prosecution on 2.8.2010
18. Thereafter, two applications were filed, one CM 17569-70/12 (for restoration and condonation of delay) and another application bearing CM no. 1998/12 (under Order 1 Rule 10 CPC).
19. All these applications are supported by the affidavit of Gaurav son of Late Banwari Lal, although the name of appellant no. 1 reflects in the memo of parties.
20. On the basis of an application bearing CM no. 17569/2010, this Court had passed an order on 2.2.2012 restoring the appeal to its original number.
21. This is how the case was again put on the tract and was listed on various dates including today. However, as a matter of fact, allowing of these applications and the restoration of the regular second appeal has no significance for the simple reason that the Court had already observed that so far as the appellant no. 1 (since deceased) is concerned, the appeal is not filed on behalf of the appellant no. 1 as it is not signed by any of his legal heirs. Moreover, the appellant no. 1 had died much before the impugned order was passed and his legal heir ought to have been brought on record before the Court which passed the impugned order.
22. So far as appellant no. 2 is concerned, there is already an order of abatement having been passed by this Court on 6.8.2009 Therefore, the order of restoration as a matter of fact was inconsequential and the appeal could not be considered on merits.
23. So far as the other application bearing CM No. 1998/2012, u/O 1 Rule 10 CPC is concerned, it was filed by Gaurav for being impleaded as a party on behalf of the appellant no. 1.
24. In the first instance, there is no dispute about the fact that Gaurav happens to be the son of Banwari Lal. It is also not disputed that Banwari Lal had expired on 30.1.2006, while as the impugned order was passed by the first appellate Court on 4.2.2008 If at all, an application for substitution of the legal heirs of Banwari Lal was to be filed by the legal heirs including Gaurav, it had to be filed before the first appellate court as has been stated hereinbefore. Having chosen not to do so, at least when the appeal was filed, an application ought to have been filed along with the present second appeal duly supported by the affidavit of the legal heirs of the appellant no. 1 (since deceased) or for seeking permission to substitute the legal heirs in place of the appellant no. 1.Banwari Lal. As this has also not been done, it is too late now when the proceedings have already abated against the appellant no. 1.Banwari Lal due to lapse of time to substitute Gaurav (LR) as a party in the instant case, therefore, I feel that application bearing CM no. 1998/2012 filed by Gaurav is totally misconceived.
25. Since the appellant no. 1.Banwari Lal has already expired and no steps were taken by his legal heirs before the first appellate Court or even before the present Court for substitution of the legal heirs in accordance with law, therefore, the appellant no. 1 was not considered to be a party to the appeal.
26. So far as the appellant no. 2 is concerned, the proceedings against him have already been abated and accordingly, the appeal does not survive. Hence, the appeal is treated to have become infructuous. Accordingly, all the applications stand dismissed.