Anant Singh and Others vs Nanak Singh

B.A. Khan, J.—Appellants are aggrieved of judgment/order dated July 29, 1988 passed by learned 2nd Addl. District Judge, Jammu,

setting aside the ex parte judgment and decree passed by Civil Subordinate Judge (Municipal Magistrate). Jammu in their favour. The first

appellate Court had been moved by respondent (Nanak Singh), who was not a party-defendant in the suit before trial Court. The short

controversy, therefore, is whether respondent who was not a party-defendant in the suit could maintain the appeal against the ex parte judgment

and decree passed in favour of the appellants.

Appellants had filed a suit seeking declaration that land covered under Khewat No. 12 (Khata Nos. 122 to 124) in village Chak-Ratnu Tehsil

Jammu was their exclusive property land and was not an evacuee property and that their order dated May 8, 1986 passed by Provincial

Rehabilitation Officer, Jammu resuming the land from them and allotting it to respondent lacked in jurisdiction.

The total burden of Mr. Gupta's argument is that since respondent was not a party-defendant in the suit as he was only an allottee of the land in

question and as the lis was between appellants and the Custodian Evacuees property, therefore, he was not a person aggrieved and could not

maintain the appeal. He placed strong reliance on 1984 KLJ 107 to buttress his contention that an allottee of the evacuee property land has no

locus to maintain any cause arising out of a lis between the original owner and the Custodian Evacuees Property. According to him, since

respondent was a stranger to the suit he could not maintain the appeal.

Mr. Lehar, learned counsel for respondent, invited my attention to the subject matter of the suit filed by appellants which reads as under :--

Suit for declaration that land comprising Khasra Nos.......... is exclusive proprietary land of plaintiff and is not and cannot be the evacuee

property, with further declaration that order dated May 8, 1986 passed by the defendant (Custodian), whereby land comprising Khasra Nos. 29

and 47 -- Min resumed and allotted being 'Evacuee property', without jurisdiction and bad in law and .......

It is manifest, therefore, that when order dated May 8, 1986, allotting land to the respondent is made subject matter of the suit and respondent

is not made a party-defendant, he is entitled to maintain the appeal as he is the party adversely effected in terms of Section 96, C.P.C. That being

the position, respondent was competent to maintain the appeal.

I don't see anything in the order impugned, which tends to cause any prejudice to the interests of appellants. It is an innocuous order which,

while setting aside the ex parte judgment and decree, directs the trial Court to hear respondent's application for impleadment.

In the facts and circumstances of the case. I find that the order impugned does not suffer from any defect or infirmity. I, there- fore, dismiss this

appeal. Record be returned to the courts below.