The State of H.P. vs Ghandarv Singh & others

CMP(M) No.1456 of 2015. By medium of this application, the applicant/appellant has sought condonation of 52 days? delay that has crept up in filing of the appeal. A perusal of the application, more particularly, para-4 thereof, indicates the sufficient cause which prevented the applicant/appellant from filing the appeal within the prescribed period of limitation.

Accordingly, delay of 52 days? in filing of the appeal is condoned. The application stands disposed of.

Appeal be registered.

RSA No.518 of 2017.

Looking to the nature of order, I propose to pass, it is not at all necessary to refer to in detail the facts of the case. Suffice it to state that the plaintiff/respondent No.1 filed a suit for declaration with consequential relief of permanent injunction and in the alternative for possession against the defendants which was partly decreed by the learned trial Court and the the plaintiff and proforma defendant No.15 were declared mortgagees of the suit land comprised in Khata No. 85, Khatauni Nos.217 and 218, Khasra Nos. 1412 and 1393, plots 2, measuring 0-76-36 HM, situated in Tikka and Mauza Bari, Tehsil Nurpur, District Kangra, H.P. to the extent of 2/3rd share and the entries showing defendants No.2 to 14 as non-occupancy tenants of the suit land were declared wrong, null and void and the plaintiff along with proforma defendants were held entitled for possession of the suit land. However, the claim of the plaintiff that he has become owner of the suit land by afflux of time was dismissed.

Aggrieved by the judgment and decree passed by the learned trial Court, appellant/State preferred an appeal before the learned first appellate Court, however, the same came to be dismissed vide judgment and decree passed by the learned first appellate Court on 24.03.2015 constraining the appellant/defendant to file the instant appeal.

It is not in dispute that when the appeal was pending adjudication bef ore the learned first appellate Court, respondent No.3 Diwan Chand died on 20.01.2014 and earlier to that respondent No.16 Dhian Singh died on 24.10.2013 and had, therefore, abated.

It is settled law that as and when the question of abatement of suit or appeal arises, such question can only be gone into and decided by the Court where the suit or the appeal was pending at the time of death of a party. (Refer: Jagan Nath and others v. Ishwari Devi, 1988(2) Shim.L.C. 273 and Karam Chand and others v. Bakshi Ram and others, 2002(1) Shim.L.C. 9).

Equally, settled is the legal proposition that decree in favour or against a dead person is a nullity. (Refer: Kishun alias Ram Kishun (dead) through L.R.s versus Bihari (D) by L.R.s, AIR 2005 SC 3799).

Consequently, the judgment and decree under challenge in this appeal in favour of dead persons being nullity is hereby set aside. The case is remanded back to the learned lower appellate Court with a direction to allow the appellant to take consequential steps on the death of respondent No.3 Diwan Chand and respondent No.16 Dhian Singh and thereafter decide the question of substitution of legal representatives as also the question of abatement of the appeal, if any, after affording the parties due opportunity of being heard. The appeal thereafter be decided afresh in accordance with law.

The parties through their counsel(s) are directed to appear before the learned lower appellate Court on 08.01.2018.

The appeal is disposed of in the aforesaid terms, leaving the parties to bear their own costs. All pending applications also stand disposed of.