Dalail Singh vs Lachman Singh & Ors
2013 Latest Caselaw 832 Del

*                   HIGH COURT OF DELHI AT NEW DELHI

+               RSA 36/1979 & C.M. Nos.861, 1071, 1074/1997,
                        188/1998,14411-14426/2007

                                       Decided on : 19th February, 2013

DALAIL SINGH                                        ...... Appellant
                       Through:   Mr. C.S. Dahiya, Advocate.

                         Versus

LACHMAN SINGH & ORS                                 ...... Respondents
            Through:              Mr. Vipin K. Singh, Advocate for LRs
                                  of R-1 to 4.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. This is a regular second appeal which has been pending since 1979.

More than 32 years have passed and the appeal is still pending final

adjudication. Today also, a request for adjournment is made on the

ground that Mr. Y.D. Nagar, the learned counsel for the appellant has

gone for some urgent work and, therefore, a date be given. It is not

possible to adjourn the matter as it is one of the oldest matter pending in

this court.

2. Vide order dated 30.7.1979, this appeal was admitted and three

substantial questions of law purported to be arising from the appeal were

formulated by Hon'ble Mr. Justice Yogeshwar Dayal (as his Lordship

then was) which are as under :-

"(i) As to the effect of order of remand; (ii) Whether the suit is within time; and (iii) Decision of the issue No.4 and other as per grounds of appeal."

3. It may be pertinent here to mention that the issue No.4 pertains to

the alleged exchange of land which was under the occupation and

possession of the appellant herein and in respect of which the respondents

had filed a suit for possession.

4. Briefly stated the facts of the case, in order to understand the

controversy and the questions purported to be arising from the appeal, are

that respondents herein filed a suit for possession on 1.5.1969 bearing

Suit No.437/1973. The respondent No.1, Lachman Singh died on

25.8.2004, respondent No.2, Rati Ram died on 17.9.2006, respondent

No.3, Bharat Singh died on 20.9.1995, respondent No.4, Ziley Singh died

on 5.4.1994 and respondent No.5, Dan Kaur died on 20.3.1988. The

plaintiffs/respondents had stated that the suit land measuring 120 x 40

(4800 square feet) out of Khasra No.736 belonged to Chattar Singh,

father of respondent No.1 (Lachman Singh). It was alleged that the said

land is under the occupation of the appellant/defendant herein, who had

illegally occupied the land in question without any right, title or interest.

Accordingly, the suit for possession against the appellant/defendant was

filed.

5. The appellant/defendant raised preliminary objections regarding

the payment of court fees, the suit being barred by limitation. On merits,

the appellant/defendant stated that the suit land was actually exchanged

by Chattar Singh, the predecessor in interest of the plaintiffs/respondents

with Shankar Singh, the predecessor in interest of the appellant/defendant

(both being the real brothers) in the year 1917 for a plot of equal area in

Khasra No.748 situated in the same village at Munirka. It was

accordingly stated that because of this exchange of land, the

appellant/defendant was in lawful occupation of the land in question and

the respondents/plaintiffs are not entitled to any decree for possession.

6. On the pleadings of the parties, following issues were formulated:-

"1. Whether the suit is correctly valued for the purposes of court fee and jurisdiction? OPP

2. Whether the suit is time barred? OPD

3. Whether the plaint is defective as alleged in para 3 & 4 of the preliminary objection of written statement? OPD

4. Whether the suit land was exchanged by father of the plaintiffs with an equal area of land with the father of the defendant in 1917? If so, to what effect? OPP

5. Whether the defendant has become the owner by adverse possession? OPD

6. Whether the plaintiffs are estopped from filing the present suit by their act and conduct? OPD

7. Relief."

7. The trial court vide order dated 4.6.1973 decided the issue Nos.2,

4, 5 & 6 in favour of the appellant/defendant and dismissed the suit on the

ground that the suit is barred by time and the defendant has acquired

ownership by adverse possession.

8. On the appeal being preferred by the plaintiffs/respondents herein,

the appellate court on 30.1.1974 set aside the order dated 4.6.1973 and

remanded the matter back to the trial court to decide it afresh after giving

an opportunity to both the parties to produce evidence.

9. It is the contention of the learned counsel for the appellant since the

only question which was raised before the learned appellate court was

regarding non-payment of court fees on the basis of market value of the

property, therefore, the remand of the matter was confined by the

appellate court only to the question of proper valuation of the court fees

and the decision thereon. It has been stated that the learned trial court

under the garb of the appellate court's order regarding remand could not

decide all the issues afresh as has been done by the learned Civil Judge

vide judgment dated 1.5.1976.

10. I have carefully considered the submissions made by the learned

counsel for the appellant as well as the learned counsel for the

respondents and have also gone through the record.

11. At the outset, it may be pertinent here to mention that the court of

Mr. B.B. Gupta, while remanding the matter back to the trial court vide

order dated 30.1.1974 has specifically observed that the matter is to be

decided by the learned Civil Judge afresh. When the learned appellate

Court said that the matter be decided afresh, it meant that the decision of

the civil court has been set aside in its entirety. It is not open to the

learned counsel for the appellant to contend that the appellate court had

set aside the impugned order of the Civil Judge dated 4.6.1973 only with

regard to the payment of court fees and its valuation. I do not accept this

contention of the learned counsel for the appellant in the light of the

specific order of remand where the appellate court by implication had set

aside the entire order dated 4.6.1973 and directed that the entire matter is

to be decided by the Civil Judge afresh meaning thereby all the issues

which were framed had to be decided by the court again after giving an

opportunity to the parties to produce evidence, therefore, in my

considered opinion, so far as this aspect of the matter is concerned, no

substantial question of law is arising from the present appeal as has been

framed by my learned predecessor vide order dated 30.7.1979.

12. It may also be pertinent here to mention that one of the issues

which was framed by the trial court in the instant matter was with regard

to valuation of the suit for the purpose of court fees and jurisdiction.

After remand, this issue was decided vide order dated 18.2.1975 against

the present appellant. Feeling aggrieved, the appellant/defendant had

preferred an appeal before the court of senior Civil Judge which was

dismissed on 7.1.1976. The learned Additional District & Sessions Judge

while deciding the appeal of the appellant against the order dated

1.5.1976 has specifically observed that the question of valuation of the

suit and the question of the payment of court fees was no more res

integra between the parties. The said issue had already been decided

against the appellant not only by the trial court but also by the first

appellate court and if the appellant felt aggrieved by the order of the

appellate court dated 7.1.1976, the proper course of remedy opened to

him was to file an appeal or any other proceedings in the High Court and

assail the said order. Having not chosen to do so, it was observed by the

learned appellate court by virtue of the impugned order that this plea

cannot be taken by the appellant now as he had not taken the question of

jurisdiction beyond the first appellate court and thereby he is estopped

from raising it again.

13. So far as the substantial question of law framed by this court on

30.7.1979 regarding remand of the matter to the trial court is concerned,

that stands already answered to the effect that the appellate court which

ordered the remand on 30.1.1974 had specifically directed the trial court

to decide the entire matter afresh after giving an opportunity to the parties

to adduce evidence and it could not be confined to the question of

payment of court fees and its jurisdiction.

14. As regards the second question which has been formulated with

regard to the suit of the respondents/plaintiffs being barred by time is

concerned, this issue has also been concurrently decided against the

appellant both by the trial court as well as the appellate court. Therefore,

concurrent finding of fact does not raise any question of law.

15. The third substantial question of law which is purported to have

been framed is regarding the decision on issue No.4. The issue No.4

essentially pertained to the plea raised by the appellant/defendant in his

written statement that he was in occupation of Khasra No.736 measuring

500 square yards in lieu of exchange of the land in Khasra No. 748

which is purported to have taken place way back in the year 1917 and

which is also confirmed by the fact that after the death of Shankar Singh,

father of the appellant/defendant, a suit for partition had been filed

amongst the successors of Shankar Singh in respect of the suit property

which is pending till today and the appellant/defendant continued to be in

possession.

16. The plea regarding exchange of the two lands, one being in Khasra

No.736, belonging to the respondents/plaintiffs and the other being in

Khasra No.748 belonging to the appellant/defendant, has not been

accepted either by the trial court or by the appellate court. The reason for

non-acceptance of this plea of exchange is two-fold. Firstly, the trial

court has held that if the land was actually exchanged and was in

possession of the appellant/defendant from 1917 onwards at least khasra

girdawaries and khatunies, would have recorded the name of the

appellant, ought to have been proved. This has not been done and,

therefore, lack of this vital piece of evidence resulted in the decision

against the appellant/defendant. The appellant/defendant had also relied

upon the oral testimony of four witnesses, namely, DW-1 (Het Ram),

DW-2 (Bohru Mal), DW-3 (Lal Chand) and DW-4 (H.S. Chadha,

Draftsman). Out of these defence witnesses, the testimony of DW-1 to

DW-3 was not considered to be credible with regard to the exchange of

the lands by the father of the appellant/defendant in respect of Khasra

No.748 with Chhattar Singh in lieu of Khasra No.736 on account of the

fact that although these three witnesses had stated that lands were

exchanged but in cross-examination they had admitted that it was not

done by the parties in their presence. Similarly, so far as the

appellant/defendant Dalail singh is concerned, he has also supported this

theory of exchange of land but it was observed by the trial court that at

the time when the purported exchange had taken place, he was not even

in existence and, therefore, his testimony also did not carry any weight.

All these findings of fact were scrutinized by the appellate court and

confirmed on 17.2.1979. This takes care of the third question of law

purported to be arising with regard to the issue No.4 as is framed vide

order dated 4.6.1973.

17. In totality of circumstances, in my considered opinion, I feel that

none of the questions, as are purported to have been framed, are

essentially substantial questions of law arising from the appeal and even

if they are considered so, none of them is of such a nature which would

warrant the setting aside of the concurrent findings against the appellant

returned by the two courts below.

18. It may be pertinent here to mention that most of the

respondents/plaintiffs have already died and the dates of their death have

already been given herein but no timely steps were taken by the

appellant/defendant to substitute the legal heirs of any of the

respondents/plaintiffs, i.e., within a period of 90 days from the date of

knowledge of the death of the respondents/plaintiffs. The applications for

substitution of legal heirs of plaintiffs/respondents are as under :-

C.M. Nos.1071/1997, 188/1998, 14413/2007, 14417/2007, 14421/2007

and 14425/2007.

19. The learned counsel for the respondents/plaintiffs had stated that as

a matter of fact, the decree of possession which was passed in the instant

case, was joint and coextensive against all the plaintiffs/respondents and

the fact of the death of the first respondent No.1 (Lachman Singh) on

25.8.2004, was within the knowledge of the appellant/defendant, as he

was closely related to the respondents/defendants, yet he has not chosen

to file any application for substitution of the legal heirs of the respondent

No.1 within a period of 90 days, therefore, the proceedings against not

only respondent No.1 but against all the respondents stands abated. For

this purpose, the learned counsel has relied upon the judgment of the

Apex Court in case titled Ram Sarup & Ors. vs. Munshi & Ors.; AIR

1963 SC 553.

20. No doubt, the Apex Court in the said case has held that where the

decree is joint against all the judgment debtors, the death of one of the

appellants would result in abatement of proceedings against all and not

one but still, as the appeal is very old, rather than dismissing the appeal

on the technical grounds, in the first instance, I have purposely chosen to

allow the applications without going into the merits of the same and

decide the regular second appeal on merits rather than ousting the

appellant/defendant on technicalities.

21. For these reasons, I allow all these applications of the appellant for

substitution of legal heirs, after allowing their applications for setting

aside the abatement proceedings against all the respondents being C.M.

Nos.14411/2007, 14415/2007, 14419/2007 and 14423/2007 as well as

condone the delay in filing the applications for substitution of legal heirs

and for setting aside the abatement proceedings against all the

respondents being C.M. Nos.1074/1997, 14414/2007, 14418/2007,

14422/2007 & 14426/2007 and C.M. Nos.14412/2007, 14416/2007,

14420/2007 & 14424/2007 respectively by assuming that the appellant

has been able to prove 'sufficient cause' for not filing the applications for

substitution of legal heirs and for setting aside abatement proceedigs on

time.

22. Having regard to the aforesaid reasons, although this court is

allowing the applications of the appellant/defendant for substitution of

legal heirs, setting aside the abatement proceedings against the

respondents and for condonation of delay but keeping in view the reasons

given hereinabove, I am of the opinion that none of the questions, as has

been formulated by my learned predecessor, are essentially substantial

questions of law. In view of the abovementioned reasons, the appeal is

dismissed. The amended memo of parties shall be filed by the

respondents.

V.K. SHALI, J.

FEBRUARY 19, 2013 'AA'