Raj Kumar Singh v. Kanwar Mohan Singh And Others S

Rakesh Kumar Garg, J.

Brief facts giving rise to this appeal are that initially, a suit for permanent injunction was filed by three plaintiffs namely Kanwar Mohan Singh, Smt. Prem Wati and Raj Kumari against defendants No. 1 to 8 (respondents No. 2 to 9) alleging that they are owners in possession in land measuring 140 kanals 18 marlas, fully detailed in the head note of the plaint being part of their estate and four years ago, the plaintiffs had given the suit land to defendant No. 1 on yearly Chakota and the remaining defendants are the cultivators/employees of defendant No. 1. The entire land of the plaintiffs situated in village Ramgarh had been acquired by the Haryana Urban Development Authority and possession of the same was taken in the month of March 1992. Hence, the plaintiffs requested defendant No. 1 to restore their possession over the suit land so that they may be able to cultivate the same for their own use. Thereafter, on 17.5.1992, defendant No. 1 delivered the vacant possession of the land to the plaintiffs after settling all the accounts. After obtaining the possession of the land from defendant No. 1, the plaintiffs sold the crop. However, defendants No. 2 to 8 tried to interfere in the possession of the plaintiffs. Hence, the suit.

Defendant No. 1 Lajja Ram was proceeded against ex parte. Defendants No. 2 to 8 filed their written statement admitting that the plaintiffs are owners of the land in question but they being cultivators of the land in question, are in actual physical possession of the disputed land and defendant No. 1 had no concern with the land in dispute. Other averments of the plaint were denied by defendants No. 2 to 8. Thereafter, they were proceeded against ex parte in the trial Court on 3.2.1996 The plaintiffs filed replication and reasserted their claim and controverted the allegations in the written statement.

It is relevant to mention that during the pendency of the suit, none appeared on behalf of plaintiffs, namely Kanwar Mohan Singh and Raj Kumari and suit qua them was dismissed in default on 2.8.1995 by the trial Court. Plaintiff No. 2 Prem Wati also died during the pendency of the suit and her legal representatives were brought on record and only Raj Kumar Singh, the present appellant, was impleaded as her legal representative.

After hearing counsel for the plaintiffs and going through the record, the trial Court decided issues No. 1 and 2 in favour of the plaintiffs. Since issues No. 3 to 6 were not pressed and even no evidence was produced by the defendants, the same were decided against the defendants. In totality, suit of the plaintiffs for permanent injunction was decreed with costs restraining defendants No. 1 to 8 i.e respondents No. 2 to 9 from interfering in the peaceful possession of the plaintiffs over the suit land.

Feeling aggrieved by the impugned judgment and decree dated 30.8.2005 of the trial Court, Kanwar Mohan Singh-respondent No. 1 filed an appeal being the legal heir of plaintiff Prem Wati. On behalf of Kanwar Mohan Singh (now respondent No. 1) it was argued before the Lower Appellate Court that an application was filed for impleading the legal heir of deceased, Prem Wati, by the present appellant Raj Kumar Singh on 9.9.1994 disclosing that Raj Kumar Singh and Kanwar Mohan Singh, appellant and respondent No. 1 respectively, are the legal heirs of deceased Prem Wati and thus, application for impleading the legal heirs of Prem Wati was allowed by the trial Court on 2.8.1995 but only the name of Raj Kumar Singh, present appellant was brought on record as legal representative of deceased Prem Wati and therefore, the impugned decree passed only in favour of Raj Kumar Singh is liable to be modified as Kanwar Mohan Singh and Raj Kumar Singh being the legal heirs of deceased Prem Wati were equally entitled to be declared as owners in possession of the suit land. The appeal was opposed by the appellant on the ground that the suit of the appellant was dismissed in default on 2.8.1995 which was not got restored and therefore, the appeal was not maintainable before the Lower Appellate Court. The Lower Appellate Court vide impugned judgment and decree dated 27.1.2006 modified the decree of the trial Court to the effect that Kanwar Mohan Singh respondent No. 1 and appellant Raj Kumar Singh are the owners in possession of the suit land and thus, the defendants were restrained from interfering into the peaceful possession of both the plaintiffs. While allowing this modification, the Lower Appellate Court observed as under:

“It may be noted here that defendants No. 2 to 8 were also proceeded against ex parte later on vide order dated 3.2.1996 Respondent No. 1 Raj Kumar Singh in his application moved under Order 22 Rule 3 CPC on 9.9.1994 in para No. 3 thereof has specifically pleaded that after the death of Smt. Prem Wati, Raj Kumar Singh and Kanwar Mohan Singh are her legal heirs and there is no other legal heir except these two persons but when he filed the amended title page, the same was filed impleading only Raj Kumar Singh as plaintiff in the present case. Hence, respondent No. 1 deliberately filed amended title page in the suit showing himself only the legal heir of deceased Smt. Prem Wati whereas the application was allowed by the Court impleading Raj Kumar Singh and Kanwar Mohan Singh as legal heirs of deceased Smt. Prem Wati. Even if it is presumed that the suit of plaintiff No. 1 Kanwar Mohan Singh and plaintiff No. 3 Raj Kumari was dismissed in default when this application was allowed, it was necessary to implead the present appellant as plaintiff being the legal heir of deceased Smt. Prem Wati and thereafter, to give notice to present appellant and even otherwise, the suit has been decreed in favour of Raj Kumar Singh as legal heir of deceased Smt. Prem Wati, it is natural that present appellant being the legal heir of deceased Smt. Prem Wati is also entitled to inherit the property of Smt. Prem Wati in equal shares. Hence, to this extent the impugned judgment and decree passed by the learned Lower Court are to be modified. No doubt by ex parte evidence of the plaintiff being the statement of PW1 Janender Singh as Special Power of Attorney of plaintiff Raj Kumar Singh proved that he is owner in possession over the suit land. Further, this ex parte evidence of the plaintiff was not rebutted as there was no evidence of the defendants on record and even these findings have not been challenged on behalf of respondent No. 1 in the present appeal. Hence, in such circumstances, issue No. 1 is decided in favour of the plaintiff that Raj Kumar Singh-respondent Kanwar Mohan Singh both the plaintiffs being the legal representatives of deceased Smt. Prem Wati are the owners in possession over the suit land and they are entitled for a decree of permanent injunction and hence, findings of learned Lower court on issues No. 1 and 2 are modified accordingly.”

Feeling aggrieved from the aforesaid judgment and decree of the Lower Appellate Court, Raj Kumar Singh-plaintiff has filed the present appeal.

It has been vehemently argued by the learned counsel for the appellant that the First Appellate Court has modified the decree passed by the trial Court illegally as the suit was also filed along with other two plaintiffs by respondent No. 1 and the same was dismissed in default qua him. After about 10 years, Kanwar Mohan Singh himself claiming to be LR of Prem Wati (since deceased) filed the appeal which was accepted and accordingly, the impugned judgment and decree modifying the trial court decree was wrong. The contention of the learned counsel for the appellant is that Kanwar Mohan Singh-respondent No. 1. being the legal representative of Prem Wati had no right to file an appeal in the given facts and circumstances as stated above. In support of his contention learned counsel has relied upon a judgment reported as Maulvi Issa Qureshi v. District Judge, Deoria and others 1996(2) Apex Court Journal 456 (SC) and has argued that when respondent No. 1 who did not stake his claim as LR of the plaintiff Prem Wati, cannot have the benefit of the judgment and decree passed in favour of the appellant being the legal representative of Prem Wati deceased plaintiff.

I have heard learned counsel for the parties.

It is not in dispute that the trial Court had passed the judgment and decree dated 30.8.2005 in favour of the appellant as LR of Prem Wati-plaintiff. Thus, the benefit of this decree had in fact enured to the LR/LRs of the estate of Prem Wati-plaintiff and not in favour of respondent No. 1 in his individual capacity. Vide impugned judgment and decree of the Lower Appellate Court, the modification has been ordered to the extent that Kanwar Mohan Singh-respondent No. 1 and appellant-Raj Kumar Singh are the owners in possession of the suit land being LRs of plaintiff Prem Wati. While modifying the impugned decree of the trial Court, the Lower Appellate Court has also noticed that in the application moved under Order 22 Rule 3 CPC in para No. 3 of the said application which was specifically pleaded by the appellant that after the death of Prem Wati, Raj Kumar Singh and Kanwar Mohan Singh are her legal heirs, however, he failed to amend cause title impleading only Raj Kumar Singh as plaintiff in the case. Thus, he deliberately showed himself as the only LR of deceased Prem Wati whereas the application was allowed by the Court impleading Raj Kumar Singh and Kanwar Mohan Singh as legal heirs of deceased. In the face of this fact, learned counsel appearing on behalf of the appellant was unable to controvert the fact that while allowing the application to implead the LRs of Prem Wati plaintiff, the trial Court had impleaded Raj Kumar Singh and Kanwar Mohan Singh both as legal heirs of deceased Prem Wati. In view of this fact alone, the present appeal has no merit and is liable to be dismissed. Moreover, even if it is presumed that the suit of plaintiff Prem Wati has been decreed by bringing on record only Raj Kumar Singh as her legal heir, still the benefit of the decree shall enure to the benefit of all the legal representatives of Prem Wati. There is no dispute that Kanwar Mohan Singh is the legal heir of Prem Wati and is also entitled to inherit her property along with the appellant in equal share. In the case of Gopal Singh v. Sher Singh and others 2006 (3) RCR Civil 842, it has been held that even if one of the legal heirs is able to execute the decree he shall be taking the estate of the deceased subject to the rights of all the original claimants which may be determined in any subsequent suit. However, in the present suit, even the appellant has no right to challenge the claim of the respondent in a subsequent/separate suit as the appellant has unequivocally admitted that respondent No. 1 along with him is the legal representative of deceased Prem Wati (plaintiff-respondent)

For the reasons recorded above, I find no merit in this appeal.

No substantial question of law arises.

Dismissed.

February 4, 2009 (RAKESH KUMAR GARG) ps JUDGE