Gaffarbeg Musakbeg Musalman And ... vs Gulabkhan Mehboobkhan Pathan ...
2006 Latest Caselaw 768 Bom

ORDER

S.B. Deshmukh, J.

1. Heard learned Counsel Mr. C.R. Deshpande for the petitioners.

2. Few facts, necessary for the consideration of this civil revision application, may be summarised, as follows:

(a) One Mr. Gulabkhan had filed Regular Civil Suit ("RCS") No. 215 of 1979 against the petitioners/defendants for possession of the suit property, (the parties, hereinafter, are referred to their status in Regular Darkhast No. 12 of 1994.). The suit property is house bearing CTS No. 2377 situated at Nandurbar, district Nandurbar, admeasuring 81.3 Sq.Mtrs. During the pendency of RCS 215 of 1979, undisputedly, Gulabkhan, the sole plaintiff died. An application was filed for substitution of legal heirs of original plaintiff Gulabkhan. Undisputedly, eight legal heirs were substituted as legal heirs of deceased Gulabkhan. Out of these eight legal heirs, plaintiff No. 5 Saidabi also died on 17th July, 1993. It is also admitted fact that RCS 215 of 1979 was decreed by the trial Court by the judgment and decree passed on 11th February, 1994. Thereafter, the defendants, being aggrieved and dissatisfied with the judgment and decree, filed Regular Civil Appeal ("RCA") No. 22 of 1994, under Section 96 of the Code of Civil Procedure ("Code") in the Court of learned District Judge, Nandurbar. It is to be noted here, that no grievance was made by the defendants regarding non-substitution of legal heirs of original plaintiff No. 5 Saidabi, who died during the pendency of RCS 215 of 1979. RCA 22 of 1994, after hearing the parties, was dismissed by the learned Additional District Judge by the judgment and decree dated 2nd July, 2001. Thereafter, the defendants preferred Second Appeal ("SA") No. 395 of 2001 in the High Court and undisputedly the said SA also was dismissed. The matter was earned to the Apex Court by filing Special Leave Petition ("SPL"), however, it was also summarily rejected.

(b) The original plaintiffs, filed Regular Darkhast ("RD") No. 12 of 1994 for recovery of possession/execution of the decree passed in RCS 215 of 1979. During the pendency of RD 12 of 1994 application under Section 47 read with Section 151 of the Code, came to be filed by the defendants on 18th November, 2003. By this Application, at Exhibit-81/D, filed by defendant on 18th November, 2003 it is alleged that the legal heirs of original plaintiff No. 5 Saidabi Gaffarkhan Pathan had not been brought on record and, therefore, the decree passed in RCS 215 of 1979 is nullity and inexecutable. It is also alleged that, at the time of filing of RD 12 of 1994 Saidabi was alive and was party to the said Darkhast. During the pendency of RD 12 of 1994 Saidabi died and her name is deleted from the record. There are five legal heirs of deceased Saidabi and they are not brought on record. It is alleged, in para 4, that deceased Saidabi was having 1/14th share in the suit property. Her share, in the suit property, is undivided. The decree passed by the Civil Court is for entire suit property and inseparable. Other plaintiffs are not entitled to seek possession of share of Saidabi, as per the provisions of Mohammadan Law. The decree cannot be split up. The event is subsequent event and, therefore, the decree is not executable and it should be declared that the said decree is nullity.

(c) The plaintiffs have filed their reply at Exhibit-85/D. It is contended that Saidabi died on 17th July, 1993. Death of Saidabi was informed by filing Purshis/praecipe in RCS 215 of 1979. RCS 215 of 1979 was heard and decreed. After passing the decree in the suit, plaintiffs have filed RD 12 of 1994. In this Darkhast, husband of Saidabi viz. Abdul Gaffarkhan Sattarkhan was recorded as legal heir of deceased Saidabi. The defendants, thereafter, filed an appeal under Section 96 of the Code, in the Court of learned District Judge and deliberately did not bring on record the legal heirs of Saidabi. At the time of service of the summons, the plaintiffs have informed the process server that Saidabi died prior to passing of the decree. Since RCS 215 of 1979 was decreed, in favour of the plaintiffs, there was no occasion for the plaintiffs to file any appeal before the Appellate Court. Defendants have not substituted the legal heirs of Saidabi in appeal and further proceedings and now they cannot take advantage of their own error. Defendants have never resorted to such plea. The application, filed by the defendants, ultimately, was requested to be dismissed. This reply is filed on 1st December, 2003. The trial Court, after hearing the learned Counsel for the parties, rejected the application by the judgment and order passed on 27th March, 2006. It is this order, which is challenged by the defendants, in this civil revision application.

3. Learned Counsel Mr. Deshpande submits that the decree passed in RCS 215 of 1979 is for entire suit property and inseparable. He submits that in accordance with the provisions of Mohammadan Law deceased Saidabi was having distinct and specified share in the suit property. In the absence of substitution of legal heirs of deceased Saidabi, the decree passed in RCS 215 of 1979 is not executable and, therefore, the trial Court ought to have allowed the application. He relied upon a judgment of the Apex Court in the matter of Kishun @ Ram Kishun (Dead) through LRs. v. Bihari (dead) by LRs. reported in 2005(4) Mh. L. J. (S.C.) 1. According to him, the facts in this revision application are identical to that of the facts in the reported judgment and, therefore, the ratio is applicable. He also relied upon a judgment of the Apex Court in the matter of Municipal Council, Mandsaur v. Fakirchand and Anr. . According to Mr. Deshpande, though, in the matter of Municipal Council (supra), the parties are belonging to Hindu religion, the provision laid down under Order 22, Rule 9 of the Code is considered by the Apex Court and, therefore, the ratio is applicable to the facts of the case on hand. Mr. Deshpande further relies upon a judgment of Division Bench of this Court in the matter of Annahai Devram Kini and Ors. v. Mithilal Daisangar Singh and Ors. reported in 2002(3) Mh.L. J. 507.

4. At the cost of repetition, it is to be noted that, in the present case, one Mr. Gulabkhan was the sole plaintiff. After demise of original plaintiff Gulabkhan, his eight legal heirs were brought on record. Out of them, plaintiff No. 5 Saidabi died on 17th July, 1993. It is the contention of the plaintiffs that Purshish/Praecipe was filed in the Court. It is also contended, in reply, by the plaintiffs that immediately after passing of decree in RCS 215 of 1979 on 11th February. 1994, execution petition RD 12 of 1994 was filed in the Court. In that execution petition, husband of deceased Saidabi viz. Abdul Gaffarkhan Sattarkhan was recorded as legal heir. Thus, factually, four legal heirs of deceased Saidabi were not brought on record in RCS 215 of 1979. The parties to RCS 215 of 1979 are belonging to one and the same religion. The defendants were appellants under Section 96 of the Code, before the learned District Judge i.e. the first Appellate Court. The defendants never bothered to substitute the legal heirs of deceased plaintiff Saidabi up till the matter was decided by the Apex Court. This plea was never raised on behalf of the defendants until disposal of the SLP. This application Exhibit-81 also seems to have been filed by the defendants on 18th November, 2003. All along, the defendants are occupying and enjoying the suit property for which decree was passed by the competent Civil Court, way back on 11th February, 1994 and it was confirmed up to Apex Court by dismissal of the SLP filed by the defendants. Even after disposal of the SLP also, this application, as noted above, was moved by the defendants on 18th November. 2003. From this conduct of the defendants, it is manifest that they were/are interested in protracting the litigation all along and were not interested in pointing out the fact that the four legal heirs of deceased plaintiff Saidabi were not brought on record. The conduct of the defendants, therefore, in my view, is not only blameworthy but seems to be ill-designed.

5. From the material, available in this revision application, I find that the plaintiffs have, in their reply, alleged that the Purshis/praecipe was filed in RCS 215 of 1979, informing the Court regarding death of plaintiff No. 5 Saidabi. Execution Petition RD 12 of 1994 was filed with substitution of one of the legal heir i.e. husband of deceased plaintiff Saidabi. is also pleaded by the plaintiffs in their reply. In my view, if some mistake is committed by the plaintiffs, it is through inadvertence and bona fide. It is not the case that all interest of deceased plaintiff Saidabi is absolutely not represented. We cannot forget a fact that at-least, in RD 12 of 1994 the name of husband of deceased plaintiff Saidabi was substituted.

6. Ordinarily, it is for the plaintiff/s or his legal heirs to inform the Court regarding death of the sole plaintiff or one of the plaintiffs. An application for substitution, ordinarily, needs to be filed in the Court. The contingency of death, marriage, insolvency of the parties is being governed by Order 22 of the Code. Order 22, Rule 1 of the Code lays down that death of plaintiff of defendant shall not cause the suit to abate if the right to sue survives. Rule 3 of Order 22 of the Code provides a procedure in case of death of one of the several plaintiffs or of sole plaintiff. In the present case, sole plaintiff Gulabkhan died during the pendency of the suit and his legal heirs, eight in number, were brought on record. One of the plaintiff i.e. plaintiff No. 5 Saidabi died during the pendency of RCS 215 of 1979. However, right to sue survives with the surviving plaintiffs. In ignorance of the fact that legal heirs of plaintiff No. 5 Saidabi were not brought on record, during the pendency of the suit in the Court of learned Civil Judge, Junior Division. As noted above, this decree is upheld ultimately by the Apex Court. In these facts and circumstances, in my view, the decree passed in RCS 215 of 1979 cannot be branded as inexecutable and on that count the application filed by the defendants cannot be allowed.

7. It is true that the parties are being governed by the provisions of Mohammadan Law. It is also true that in the case of death of male Mohammadan person, the properly is being inherited by his legal heirs with distinct and specified shares. In the present case, it cannot be said that since legal heirs of deceased plaintiff Saidabi were not brought on record and, therefore, the decree passed against the defendants becomes inexecutable. In my view, the status of defendants, in the suit property, is important factor. In other words, the plaintiffs, even in the absence of legal heirs of deceased plaintiff Saidabi, could maintain the action for eviction against the defendants. From this view point also, in my view, the decree passed by the Civil Court in RCS 215 of 1979 cannot be said to be inexecutable.

8. The judgment of the Apex Court in the matter of Kishun (supra), is in respect of death of plaintiff as well as defendant, during the pendency of second appeal. This fact was not brought to the notice of the High Court and the second appeal was decided. In para 5 of the judgment, the Apex Court, therefore, held that the decree passed in such second appeal is a nullity. The facts are clearly distinguishable and, therefore, the ratio in the matter of Kishun (supra) is not applicable to the facts in relation to the case on hand.

Another judgment in the case of Municipal Council (supra) is also in the different set of facts. These facts are listed in para 4 of the reported judgment. There were three brothers/plaintiffs claiming to be the owners of the joint Hindu family property and had filed a suit against the Municipal Council, Mandsaur for permanent injunction. The suit was decreed and the Municipal Council preferred appeal before the lower Appellate Court. During the pendency of such appeal, one of the three brothers had died. The Municipal Council did not bring the heirs and legal representatives of the deceased brother, on record, despite the knowledge of such death. It made an application that the name of the deceased brother should be deleted from the array of plaintiffs. Thus, the facts are distinguishable and for this reason the ratio of the reported judgment is not applicable to the facts of the case on hand.

The Division Bench judgment of this Court, in the case of Annabai (supra) is in Appeal No. 448 and 449 of 2001. From the judgment, it appears that the suit for specific performance was filed. During the pendency of the suit, one of the three plaintiffs, being party to a joint individual contract, died. No steps were taken to bring the heirs and legal representatives of the deceased plaintiff, on record, within the time prescribed by law. The interest of the plaintiffs, in the subject-matter of the suit, would abate in its entirety, is the ratio of this judgment. In my view, factually, there were three joint owners of the property, who were contracting party. The Division Bench of this Court, on the basis of the facts obtaining, proceeded to consider the provisions laid down under Order 22, Rule 9 of the Code. In the present case, undisputedly, there was no such agreement to sale and/or contract between the parties. The ratio of this judgment, therefore, has no application to the facts of the case on hand.

9. It is apropos to refer to the Division Bench judgment of this Court in the matter of Raddulal Bhurmal and Ors. v. Mahabirprasad Bisesar Kalwar and Ors. . The Division Bench of this Court, considered the provisions laid down under Order 22, Rule 3 Order 34, Rule 3 of the Code. In the matter of Raddulal (supra) it appears that the suit was instituted in the year 1941 in the Court of Sub-Judge, First Class, Bhandara for enforcement of mortgage. The claim of the plaintiffs was decreed in full and a preliminary decree for Rs. 11398/8/- inclusive of costs was passed in favour of the plaintiffs. The time for redemption expired on 12th February, 1943 whereupon the plaintiffs made an application for passing a final decree for foreclosure. Along with the application for making the decree final, an application was made by Jagdish Prasad, one of the original plaintiffs, stating that the original plaintiffs 1, 6, 9, 11 and 13 had died and that therefore their legal representatives should be brought on record. In the background of these facts, the Division Bench analysed the provision laid down under Order 22, Rule 3 and Order 34, Rule 3 of the Code and held that "it seems to us that it is no longer open to the defendant to say that Jamnalal died before the preliminary decree was passed. That was a matter which had to be agitated by the defendant before the decree was passed. Unless we hold that the matters which have been decided before the preliminary decree was passed cannot be reopened subsequent to the passing of the decree and unless we hold that the matters which properly ought to have been raised before the passing of the preliminary decree cannot be allowed to be raised after the decree was passed, there will be no finality to the decisions of Courts and that would be against principle. In our view, therefore, it was not open to the Court before whom the application was made for making the decree final at all to consider whether Jamnalal died before the preliminary decree was made. An application was made on behalf of the legal representatives of Jamnalal for being brought on record in his place but since it was not made within the period of limitation it was not granted. In our view, therefore, the plaintiffs are entitled to a final decree. "

10. In the present case also, in my view, plaintiff Saidabi died on 17th July, 1993. The decree is passed in RCS 215 of 1979 on 11th February, 1994. Defendants could have set up this plea and/or raise a grievance regarding death of deceased plaintiff Saidabi before passing decree in RCS 215 of 1979. Their grievance on 18th November, 2003, therefore, cannot be accepted.

11. It is also apropos to refer to the judgment of this Court in the matter of Gautam Rumanial Diwan and Anr. v. Madhukar Raghunath Kalewar and Ors. reported in 1987 Mh.LJ. 1052. In a suit filed by the co-owners, against the trespasser - one of the co-owner died and his legal heirs were not brought on record. This Court held that the suit does not abate. It is to be noted that, in the matter of Gautam (supra), the parties were belonging to Hindu religion. This Court, relied upon a judgment of the Apex Court, , State of Maharashtra v. Narayan Rao. A question of inheritance of a female Hindu was considered. However, the provision laid down under Order 22, Rule 3 and 22 of the Code were considered by the learned Single Judge of this Court in relation to the facts that the parties were governed by the provisions of Hindu Law.

12. I am in respectful agreement with the view taken by the Division Bench of this Court, as well as the learned Single Judge Bench of this Court, regarding the interpretation of the provision laid down under Order 22 of the Code. In this view of the matter, no case for interference, in revisional jurisdiction of this Court, under Section 115 of the Code, is established. This Civil Revision Application, therefore, stands dismissed, in limine.