Bhanwar Lal vs Lrs Of Jawari Lal
2021 Latest Caselaw 759 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

S.B. Civil Revision Petition No. 48/2019

Bhanwar Lal S/o Shri Sukha Ram Ji, Aged About 54 Years, R/o Pipaliya Kalan, Tehsil Raipur, District Pali (Rajasthan)

----Petitioner

Versus

1. Lrs Of Jawari Lal, Tehsil Raipur, District Pali (Rajasthan)

2. Ramesh S/o Jawari Lal, R/o Pipaliya Kalan, Tehsil Raipur, District Pali (Rajasthan)

3. Santosh D/o Jawari Lal, R/o Pipaliya Kalan, Tehsil Raipur, District Pali (Rajasthan)

4. Vanita D/o Jawari Lal, R/o Pipaliya Kalan, Tehsil Raipur, District Pali (Rajasthan)

5. Arun Devi W/o Jawari Lal, R/o Pipaliya Kalan, Tehsil Raipur, District Pali (Rajasthan)

6. Umrao Devi W/o Ratan Chand, R/o Pipaliya Kalan, Tehsil Raipur, District Pali (Rajasthan)

7. Kamla Bai W/o Shanti Lal, R/o Pipaliya Kalan, Tehsil Raipur, District Pali (Rajasthan)

8. Ashok Kumar S/o Shanti Lal, R/o Pipaliya Kalan, Tehsil Raipur, District Pali (Rajasthan)

9. Mahendra Kumar S/o Shanti Lal, R/o Pipaliya Kalan, Tehsil Raipur, District Pali (Rajasthan)

10. Rajendra S/o Shanti Lal, R/o Pipaliya Kalan, Tehsil Raipur, District Pali (Rajasthan)

11. Prakash Chand S/o Panna Lal, R/o Pipaliya Kalan, Tehsil Raipur, District Pali (Rajasthan)

12. Suresh Chand S/o Dhanraj Ji, R/o Pipaliya Kalan, Tehsil Raipur, District Pali (Rajasthan)

13. Prakash Bai W/o Paras Ram, R/o Pipaliya Kalan, Tehsil Raipur, District Pali (Rajasthan)

14. Yashwant S/o Shanti Lal, R/o Pipaliya Kalan, Tehsil Raipur, District Pali (Rajasthan)

----Respondents

(2 of 5) [CR-48/2019]

For Petitioner(s) : Mr. Arvind Samdariya.

For Respondent(s)        :


           HON'BLE MR. JUSTICE ARUN BHANSALI
                          Order

12/01/2021

This revision petition is directed against the judgment dated

8/1/2019 passed by Addl.District Judge, Jaitaran, District Pali,

whereby, the appeal filed by the respondents against the order

dated 12/10/2011 passed by the Civil Judge (Sr. Div.), Jaitaran

has been allowed and the suit, which was dismissed by the trial

court as abated, has been restored.

The suit was filed by the six plainitffs including one Parasmal

for cancellation of sale deed and permanent injunction inter alia

with the submissions that one Oswalo-ka-chowk was situated at

Pipalian Kalan, which was being used by the plaintiffs from time

immemorial and the same was not owned by any one person. It

was claimed that defendant Shanti Lal was not owner of the land

in question, however, defendant Bhanwar Lal stated that he has

purchased the said Chowk from Shanti Lal on 5/1/1998 by

registered sale deed and that he would raise construction. It was

claimed that for the first time on obtaining certified copy of the

sale deed, the plaintiffs became aware of the said sale. It was

averred that defendant Shanti Lal has no right to transfer the land

of Chowk, he was never in possession and, therefore, the sale

deed was liable to be cancelled.

It was further alleged that the defendant no.2 was seeking to

raise construction and, therefore, he be restrained from raising

any construction on the land of Chowk.

(3 of 5) [CR-48/2019]

By way of amendment, it was claimed that in violation of

temporary injunction order dated 22/2/2000, the construction

raised, be demolished.

During the pendency of the suit, one of the plaintiffs -

Parasmal died in the year 2007 and after four years an application

under Order XXII Rule 3 CPC was filed to bring on record his legal

representatives. The application was contested by the defendants

and by order dated 12/10/2011, the trial court observing that as

the application was filed belated, without any reasonable cause

and no application was filed seeking condonation of delay and as

the suit was for cancellation of sale deed and permanent

injunction, wherein, all the plaintiffs had joint interest, in absence

of legal representatives of Parasmal, the same cannot be

proceeded and consequently rejected the application under Order

XXII Rule 3 CPC and dismissed the suit as having become abated.

Feeling aggrieved, the plaintiffs and legal representatives of

Parasmal filed appeal before the Addl. District Judge, Jaitaran. The

appellate court by its judgment came to the conclusion that as the

steps were not taken for bringing on record the legal

representatives of deceased Parasmal within the period of

limitation, the suit itself abated qua him and as no application was

filed seeking setting aside of abatement and condonation of delay

in filing the application, the trial court was justified in rejecting the

suit qua Parasmal. However, the appellate court also came to the

conclusion that as all the plaintiffs had separate right and had

right to file separate suits, on account of death of one plaintiff and

not bringing on record his legal representatives, the entire suit

could not abate as the suit pertained to a common Chowk and for

right of way and consequently accepted the appeal and the order

(4 of 5) [CR-48/2019]

dated 12/10/2011 was modified to the extent that suit qua

Parasmal stood abated, however, rest of the plaintiffs could

continue with the suit.

Feeling aggrieved, the present revision petition has been

filed.

It is submitted by learned counsel for the petitioner that the

appellate court was not justified in setting aside the order passed

by the trial court inasmuch as the plaintiffs had filed the suit for

common cause and once the same stood abated qua Parasmal,

the same could not be proceeded with by other plaintiffs.

Submissions were also made that a look at the issues framed

would indicate that the same were common to all the plaintiffs and

once the issues were common to all the plaintiffs, the abatement

of suit qua one plaintiff would result in abatement qua all the

plaintiffs and on that could also the judgment impugned deserves

to be quashed and set aside.

Reliance was placed on Badni & ors. vs. Siri Chand & Ors. :

AIR 1999 SC 1077 and Babu Sukhram Singh vs. Ram Dular Singh

& Ors. : AIR 1973 SC 204.

I have considered the submissions made by learned counsel

for the petitioner and have perused the material available on

record.

As noticed hereinbefore, the nature of suit was that several

plaintiffs, who were essentially not connected to each other, filed

the suit in relation to a common Chowk claiming right to use the

same and lack of any authority in defendant no.1 to transfer the

same to defendant no.2. Further, permanent injunction was

sought from raising any construction over the said Chowk. The

nature of suit was such wherein, all the plaintiffs had similar but

(5 of 5) [CR-48/2019]

independent right to file the suit for cancellation of sale deed and

injunction and, therefore, apparently the first appellate court was

justified in coming to the conclusion that on account of suit having

abated qua one plaintiff, the same would not abate as a whole.

The abatement of the suit as a whole in case of several plaintiffs

may arise in a given case where the plaintiffs are so

interconnected that in case the suit abates qua one plaintiff, all

the plaintiffs would be bound, on account of such abatement and

the suit would abate as a whole, which is not the circumstance in

the present case.

The reliance placed by learned counsel for the petitioner on

the judgment in the case of Babu Sukhram Singh (supra) has no

application to the facts of the present case inasmuch as in the said

case the joint claim was against several defendants and legal

representatives of many defendants were not brought on record,

which situation cannot be compared with the suit of present

nature, where one of the plaintiffs had died and not the

defendant.

Further, the case of Badni (supra) also has no application to

the facts of the present case in view of the nature of the suit,

wherein, in the present case all the plaintiffs have similar but

independent cause, however, they filed a common suit.

In view of the above discussion, no case for interference is

made out in the judgment impugned. There is no substance in the

revision petition and the same is, therefore, dismissed.

(ARUN BHANSALI),J

25-baweja/-

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