Raghunandan Prasad and others vs Ramavtar and others

This second appeal is directed against the judgment and decree dated 14.07.2005 passed in Civil Appeal No.115- A/2004 passed by VI th Additional District Judge (Fast Track Court), Rewa in which interference was declined against the judgment and decree dated 01.09.2003 passed in Civil Suit No.30-A/2000 passed by the 1st Additional Civil Judge Class I Rewa.

Brief facts narrated by the appellants are that the respondent Nos.1 and 2 filed the instant civil suit against the rest of the respondents claiming relief of possession. The said civil suit was instituted on 27.09.1977. It was alleged that the suit lands bearing Khasra Nos.669, 674 and land bearing Khasra Nos.310 and 313 located at Village Simaria, Tehsil Sirmour, District Rewa were allotted to them in partition. It was averred in the plaint that defendants have forcibly taken possession of the suit lands. Hence, the said suit claiming possession and mense profit was instituted.

In appeal, the appellants have mentioned the genealogical tree, which is reproduced hereinunder:

Chandu Ram

Anantram Shivsahayram Ramsahay

Kashi Prasad Dadua Ram Govind Prasad Hanuman Prasad Ganda prasad Jagatdev (D-4) Ram Avtar Shesh Mani (P-1) (P-2) Ram Milan Nand Kishore (D-2) Govindram Chunkai (D-3)

Shri Sankalp Kochar, learned counsel for the appellants contends that defendant Nos.1 to 3 and original defendant No.2, namely, Shri Nand Kishore expired during the pendency of the suit. The defendant Nos.1 to 3 filed a common written statement stating that as per the partition, the suit lands were allotted to the sons of Anantram. The land bearing Survey No.669 and 667 were sold to Shri Chandra Bhan Kachi, who is admittedly father of present appellant Nos.2 & 3. This sale took place through registered sale deed dated

13.03.1975. It is stated that by order dated 26.06.1977, the name of Late Chandra Bhan was duly mutated in the revenue records.

Learned trial Court framed the issues, recorded evidence and disposed of the suit vide judgment and decree dated 01.09.2003. To elaborate, it is contended that the defendant No.1 is not son of Chandra Bhan and he had no knowledge whatsoever about the litigation gonging on before the trial Court. The appellant No.1 after making due inquiry found that the name of original defendant No.2, namely, Nand Kishore is recorded in the revenue records. Thus by registered sale deed dated 18.02.1987, he purchased the land bearing Khasra No.674 ad-measuring 1.03 acres for a valuable consideration of Rs.15,500/-. It is stated that his name was duly mutated in the revenue records by order dated

31.12.1988.

It is urged that parties to the suit were fully aware about the alienation of the property but they did not bring the relevant facts to the notice of the learned trial

Court. It is submitted that the legal representative of Nand Kishore colluded with plaintiff and filed an application for recording the settlement under Order 23 Rule 3 of Code of Civil Procedure (CPC). It is submitted that although the said application was not signed by all the parties to the suit, the application was allowed and the trial Court recorded the compromise and disposed of the suit vide judgment and decree dated 01.09.2003. On the basis of settlement, it was decided that the plaintiff No.1 shall be the owner of the land bearing Khasra Nos.669 and Khasra No.674. Further direction is that defendant Nos.1 to 3 shall deliver the possession of aforesaid lands to the plaintiff No.1. Learned trial Court further held that the land bearing Khasra No.669 shall be allotted to defendant No.3. However, the claim in respect of the mense profit was rejected by the trial Court.

The appellants contend that the appellant No.1 was not aware about the pendency of the litigation between the members of the family. Shri Sankalp Kochar, learned counsel for the appellants, by taking this court to the application preferred under Order 1 Rule 10 of CPC submits that it was not filed by Chandra Bhan. Even assuming that such an application was filed, the application shows that for want of better particulars in the suit, Chandra Bhan took a stand that it is not clear that how he was a necessary party. Shri Kochar submits that in the appeal before the 1 st Appellate Court, the present appellants have taken a categorical stand that such application under Order 1 Rule 10 of CPC was never filed by Chandra Bhan. However, the Court below did not deal with this contention at all.

The lower Appellate Court dismissed the appeal by impugned judgment. The appeal was dismissed mainly on two counts : (a) the appellants were not party in the civil suit, therefore, they have no right to prefer an appeal; (b) the appeal was barred by time.

Criticizing these findings, Shri Kochar submits that it was specific case of the appellants that they were not aware about the pendency of the aforesaid civil suit.

However, they are adversely affected by the outcome of the said suit. They were in continuous possession of the suit property and, therefore, judgment and decree will have a drastic impact on their right to continue. Hence, the appellants had locus standi to assail the judgment passed by the trial Court. In support of his contention, he relied on certain judgments of Supreme Court.

So far question of limitation is concerned, Shri Kochar submits that judgment of trial Court dated 01.09.2003, a first appeal was preferred on 24.11.2003, hence it was preferred well within the time and there was no delay at all.

No other point is pressed by the learned counsel for the appellants.

I have heard the counsel and perused the record.

This Court on 01.07.2009 framed following substantial questions of law:

''(1) Whether the lower appellate Court has committed an error in holding that the appellant is not entitled to file the appeal when a compromise decree having an adverse effect on the right of the appellant, which had accrued to him by virtue of purchase of property is passed against him.

(2) Whether the finding recorded by the trial Court that sufficient cause for condoning the delay is not shown is a correct finding based on the material available on record and is a perverse finding.''

As to question No.1: A plain reading of the judgment of 1st Appellate Court makes it clear that its view was that the appellants were not party before the trial Court. The appellants have not shown any legal authority to show that the appellants who were not a party before the trial Court, have the locus standi to file the appeal. In the opinion of this Court, Sections 96 and 100 of CPC do not enumerate the categories of of persons who can file an appeal. After taking note the judgments of Supreme Court reported in AIR 1967 SC 1470 (Phoolchand Vs.

Gopal Lal), 1970 (3) SCC 573 (Jatan Kumar Golcha Vs.

Golcha Properties (P) Ltd.), and 1974 (2) SCC 393 (Ganga Bai Vs. Vijay Kumar), the Apex Court in 2003

(9) SCC 606 (Banarsi and others Vs. Ram Phal) held that it is settled by a long catena of decisions that to be entitled to file an appeal, the person must be one "aggrieved" by the decre. Unless a person is prejudically or adversely affected by the decree, he is not entitled to file an appeal.

In 2013 (9) SCC 261 (Harvinder Singh Vs. Paramjit Singh), it was held that if a judgment and decree prejudically affects a person, needless to emphasize he can prefer an appeal. Thus, as a thumb rule or a straight jacket formula, it cannot be said that the persons who were not party to the civil suit cannot file the appeal. If appellants are able to establish that they are "persons aggrieved" or "prejudically affected" by the judgment and decree, they can very well assail the judgment and decree passed by the competent Court. Pertinently, the lower appellate Court has not given any finding whether appellants are aggrieved persons or not. The appeal has been dismissed solely on the ground that the appellants were not party to the civil suit.

The lower appellate Court did not deal with the contentions of the appellants that actually no such application under Order 1 Rule 10 of CPC dated 23.09.1993 was filed by Chandra Bhan.

The Court below also did not deal with contention of appellant No.1 that he is not son/legal representative of Chandra Bhan and, therefore, even if Chandra Bhan had preferred any application under Order 1 Rule 10 of CPC, it will have no impact on his case. In the light of aforesaid, I am unable to countenance the judgment impugned herein, wherein it is held that being non-parties to the civil suit, the appellants had no locus standi/right to assail the judgment passed by the trial Court. The lower appellate Court is required to examine whether the appellants are "persons aggrieved" and then decide the question of their locus standi.

As to question No.2: As noticed, the judgment of the trial Court was passed on 01.09.2003 and appeal was preferred on

24.11.2003. The appeal is preferred within the prescribed period of limitation from the date of obtaining certified copy of the order of the trial Court. Thus, the appeal is within the time and the Court below has erred in rejecting the appeal on the ground of limitation. On the basis of foregoing analysis, the judgment and decree dated 14.07.2005 is set aside. The matter is remitted back to the lower appellate Court with the direction to examine whether the appellants are "person aggrieved" and then proceed with the matter in accordance with law and decide it expeditiously. It is made clear that this Court has not given any finding on the merits of the case or on the aspect whether the appellants are actually "persons aggrieved". This aspect needs to be decided by the learned Court below.

Resultantly, the judgment and decree is set aside. The

appeal is allowed to the extent indicated hereinabove.