Ram Kishan vs Arjun

Augustine George Masih, J.—C.M. No. 14249-C of 2014

Prayer in this application is for condonation of delay of 154 days in re-filing the appeal.

The reason for the delay, as has been pointed out by the counsel for the applicant/appellant, is that after filing of the appeal, certain objections were raised by the Registry. The file was taken back and after rectifying the said objections, the appeal was re-filed. Thereafter again, certain fresh objections were raised and after removal of those objections, the appeal was re-filed, which has resulted in delay of 154 days in re-filing the appeal. The application is supported by the affidavit of the applicant/appellant.

For the reasons mentioned in the application, the same is allowed. Delay of 154 days in re-filing the appeal is condoned.

C.M. No. 14250-C of 2014

Prayer in this application is for condonation of delay of one day in filing the appeal.

For the reasons mentioned in the application, which is duly supported by the affidavit of the applicant/appellant, the same is allowed. Delay of one day in filing the appeal is condoned.

RSA No. 5999 of 2014

Challenge in this appeal is to the judgment and decree passed by the Civil Judge (Junior Division), Panchkula dated 09.10.2012, whereby the suit for declaration to the effect that the appellant-plaintiff is the absolute owner in cultivating physical possession over the land measuring 8 Kanal 8 Marlas, out of which, his share is 4 Kanal 4 Marla and to the effect that the judgment and decree dated 20.12.1982 passed by the Sub-Judge, Second Class, Ambala City followed by Mutation No. 716, dated 29.06.1987 sanctioned by the office of Tehsildar, A.C./First Grade and the jamabandi for the year 1955-56 should not be binding upon the appellant-plaintiff as the same are void, has been dismissed on the ground of limitation, appeal against which preferred by the appellant-plaintiff stands dismissed by the Additional District Judge, Panchkula on 29.11.2013.

It is the contention of the learned counsel for the appellant that the predecessor-in-interest of the property in question measuring 8 Kanal 8 Marla was holding the land as a Gair Marusi tenant. He contends that as the said tenancy is inheritable, the appellant-plaintiff has a share in the said property. A suit was filed by the respondent-Arjun, who is real brother of appellant, for declaration to the effect that he is owner-in-possession of 8 Kanal and 8 Marla of land, which was decreed by the Sub-Judge, Second Class, Ambala City on 20.12.1982. In pursuance to the said decree, mutation dated 29.06.1987 was sanctioned in favour of his brother respondent-defendant. He contends that in the said suit, the appellant-plaintiff, who has equal rights to the property, has not been impleaded as a party and, therefore, the said judgment and decree is not binding on him and inoperative. He further states that the said decree is void ab-initio as it is a result of fraud having been played upon the Court by not impleading him as a party although he was a necessary party and for challenging the said decree, there is no limitation and the same can be set aside at any stage. In support of this contention, he has placed reliance upon a judgment of the Supreme Court in S.P. Changalvaraya Naidu (dead) by L.Rs. vs. Jagannath (dead) by L.Rs., 1994 (1) R.R.R. 253. His further contention is that the decree passed by a Court without jurisdiction is a nullity and, therefore, it also can be challenged at any stage. In support of this contention, he places reliance upon the judgment of the Supreme Court in Mantoo Sarkar vs. Oriental Insurance Co. Ltd. and others, , 2009 (1) R.C.R. (Civil) 417. Prayer has, thus, been made for setting aside the impugned judgments and decree passed by the Courts below and for decreeing the suit of the appellant-plaintiff.

I have considered the submissions made by the learned counsel for the appellant and with his assistance, have gone through the impugned judgments.

The Lower Appellate Court has primarily dismissed the appeal of the appellant-plaintiff on the ground of limitation holding it to be beyond the period within which challenge could have been laid to the judgment and decree dated 20.12.1982 passed by the Sub-Judge, Second Class, Ambala City. The basic question, which requires to be considered and decided, at this stage, is whether the judgment and decree dated 20.12.1982, as challenged, is a void decree. In the present case, admittedly the appellant-plaintiff is claiming himself to be having equal right in the property as the respondent-defendant in the property, was not a party to the suit. Whether such a suit and the consequent judgment and decree passed by the Court would be a void decree or not, this has only one answer that, at best, it can be said to be an illegal decree and not a void decree. Therefore, the judgment of the Supreme Court in S.P. Changalvaraya Naidu (dead) by L.Rs.''s case (supra) would not be applicable to the case in hand.

As regards the submission of the learned counsel for the appellant that the Court did not have the jurisdiction to pass the decree dated 20.12.1982, the said plea cannot be accepted as the competent Court to grant a decree for declaration was the same at the relevant time. The decree, as has been passed, therefore, cannot be termed as a void decree. The judgment of the Supreme Court in Mantoo Sarkar''s case (supra), thus, does not apply.

Now coming to the question as to whether the present suit can be termed to be one which is within limitation, the appellant-plaintiff, while appearing as a witness, has admitted, in his cross-examination, that he was aware of the pendency of the suit filed by his brother, who is the respondent-defendant herein. It has also come on record in the cross-examination that they were residing together at that relevant time and the appellant-plaintiff was working in the Supply Depot, Panchkula and was of 40 years of age. He has further admitted that on the dates when his brother went to the Court, he had been giving him money for contesting the case and has also admitted that the decree was passed in the case. This clearly establishes that the appellant-plaintiff was well aware of the decree, which has been passed. His assertion that he had no knowledge of the contents of decree does not inspire confidence as the mutation in pursuance to the decree was sanctioned on 29.06.1987 although a plea has been sought to be taken that he has come to know about the factum of the land having been transferred in the name of the respondent-defendant when he went to the Halqa Patwari for obtaining the revenue record as he intended to take loan from the bank in the year 2008 but this cannot be accepted in the light of the above factual position, which has come to light in his cross-examination. Limitation to challenge an illegal decree or a decree, in which the person is not a party, would be three years from the date of knowledge of the said decree having been passed. In the present case, as per the admission in the cross-examination, the appellant-plaintiff was well aware of the decree having been duly passed in the year 1982 and not only that, the subsequent mutation dated 29.06.1987. In view of the above, the finding, as recorded by the Courts below, that the suit of the appellant-plaintiff is barred by limitation, cannot be faulted with as it is based on proper appreciation of the pleadings and the evidence brought on record.

There being concurrent findings recorded by the Courts below on the facts of the case, which have been found to be based on proper appreciation of the pleadings and the evidence produced by the parties, there is no illegality in the impugned judgments passed by the Courts below. Further, there is no substantial question of law in the present appeal, which requires consideration of this Court.

In view of the above, finding no merit in the present appeal, the same stands dismissed.

C.M. No. 14251-C of 2014

In the light of the dismissal of the main appeal, no separate orders are required to be passed in this application for stay and, therefore, the same stands dismissed.