The Id. trial Court decreed the suit of the plaintiff relying upon the decision of the Supreme Court in the case of Giani Ram and Ors. v. Ramji Lal and Ors. 1 A.I.R. 1969 S.C. 1144, wherein it has been held that the declaratory decree in a suit by reversioners enures in favour of all heirs including female heirs. Thus, it was held that the plaintiff as well as all his other brothers and sisters have got right in the suit land. The argument that their legal heirs were not impleaded as a party did not find favour with the trial Court on the basis of the judgment of this Court in the case of Murti Shri Durga Bhawani (Hetuwali) Trust v. Harbhajan Singh and Anr.2 1987 P.L.J. 555 wherein it was held that suit by one of the co-sharers for possession against trespasser in respect of the entire property without impleading other co-sharers is maintainable. Such findings were affirmed in appeal by the first appellate Court on 24.1.2000.
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Punjab-Haryana High Court
Ilam Chand And Anr. vs Ved Parkash And Ors. on 29 July, 2003
Equivalent citations: AIR 2004 P H 53, (2003) 135 PLR 267
1. Defendants No. 1 to 3 are in second regular against the decree for possession passed by the Courts below in favour of the plaintiff, respondent herein.
2. The brief facts out of which the present appeal arise are that one Birbal s/o Siri Ram sold agricultural land on 23.5.1953. The said sale was disputed by the plaintiff in a reversionary suit by filing a suit for declaration to the effect that the alienation made by his father shall not bind the reversioners of the vendor after his death. The suit was decreed on 12.11.1954. The appeal filed by Ram Sarup s/o Kadma vendee was dismissed on 24.12.1955.
3. Birbal son of Siri Ram, father of the plaintiff, died on 26.9.1991 and thus, the right to claim possession arose to the reversioners on the basis of judgment and decree dated 12.11.1954. On 4.12.1991, the plaintiff one of the reversioners filed a suit for possession on the ground that the alienation made by his father on 23.5.1953 has been held to be not binding on the rights of the plaintiff and thus, the plaintiff is entitled to possession of the suit land.
4. Defendants No. l to 5 are sons and daughters of Birbal S/o Lal Mann and defendants No. 6 and 7 are sons of Ram Sarup s/o Kadma vendees from Birbal s/o Siri Ram
5. Defendants No. l to 3 filed a joint written statement controverting the claim of the plaintiff on various grounds including the ground that the suit is time barred and that the alienation is valid and not binding on the plaintiff. It was alleged that the defendants are in possession of the suit land being absolute owner. The decree, if any, is void ab initio and binding on the rights of the defendants. The parties are governed by Mitakasra Hindu Law and as such the sale could not be declared null and void applying the principles of customary law. Mere declaratory suit was not maintainable as relief of possession was not sought in the previous suit. It has been further submitted that if the sale in favour of predecessor-in-interest of the defendants was set aside then the suit for possession could be filed within a period of 12 years by the alienor himself during his life time and, therefore, unlawful possession of the defendants since 1954-55 ripened into ownership. It was also submitted that the plaintiff alone had no right to file a suit for possession on of the land in question.
6. In evidence, the plaintiff has produced copies of the judgment and decree dated 12.11.1954 as Exhibits P-8 and P-9 respectively whereas the record of consolidation was produced as Exhibit P-l 1 to P-13 wherein in the suit land was shown as allotted in lieu of old Khasra No. The death certificate of Birbal s/o Siri Ram was produced as Exhibit P-14.
7. The Id. trial Court decreed the suit of the plaintiff relying upon the decision of the Supreme Court in the case of Giani Ram and Ors. v. Ramji Lal and Ors. 1 A.I.R. 1969 S.C. 1144, wherein it has been held that the declaratory decree in a suit by reversioners enures in favour of all heirs including female heirs. Thus, it was held that the plaintiff as well as all his other brothers and sisters have got right in the suit land. The argument that their legal heirs were not impleaded as a party did not find favour with the trial Court on the basis of the judgment of this Court in the case of Murti Shri Durga Bhawani (Hetuwali) Trust v. Harbhajan Singh and Anr.2 1987 P.L.J. 555 wherein it was held that suit by one of the co-sharers for possession against trespasser in respect of the entire property without impleading other co-sharers is maintainable. Such findings were affirmed in appeal by the first appellate Court on 24.1.2000.
8. The Regular Second Appeal initially came up for hearing on 10.5.2000 when the same was dismissed. However, in Special Leave Petition (Civil) No.3773 of 2001 the appeal was allowed and the impugned order was set aside and the appeal was directed to be disposed of after framing of appropriate questions of law.
9. The appellants framed the following questions of law;-
1. Whether the suit for possession could be filed by one of the legal heirs when the decree enures for benefit of all the legal heirs as held by the Hon'ble Supreme Court in A.I.R. 1969 Supreme Court page 1144?
2. Whether the suit was bad for non-joinder of necessary parties and was liable to be dismissed after the amendment of CPC in 1976?
3. Whether the jurisdiction of a civil Court can be invoked by owner of the land for seeking relief for possession against the cultivator in possession?
4. Whether the suit for possession could be filed by one of the legal heirs when the decree enures for the benefit of all the legal heirs?
5. Whether the suit was bad for non-joinder of necessary parties and was liable to be dismissed after the amendment of Code of Civil Procedure in 1976?
10. I have heard learned counsel for the parties at some length and have gone through the record of the case carefully. Learned counsel for the appellants has argued that the defendants-appellant are tenant and, therefore, suit for possession cannot be decreed against them. The appellants further argued that the plaintiff has not appeared as a witness and therefore, a decree for possession cannot be passed in favour of the plain he dismissed.
11. In my view, the questions of law as raised by the defendants-appellant do not arise or consideration of this Court nor the argument raised by the appellants has any merit,
12. Firstly, the argument that the appellants are the tenants on the suit land was not raised at any point of time in any of the proceedings. As a matter of fact, even in the additional grounds, the appellants have taken a ground that the appellants since beginning are the cultivators in possession and proceedings for possession have to be initiated under the Punjab Land Revenue Act. It is, thus, apparent that the plea of tenancy was neither pleaded nor proved by the appellants in any such of the proceedings and, thus, it is too late for them to raise the arguments without any pleading and evidence at the stage of second appeal.
13. Secondly, the argument of the defendants-appellant that the plaintiff has not appeared as a witness is again untenable. The defendants have not disputed that the plaintiff is not one of the legal heirs of Birbal. Rather, the objection raised is that the plaintiff has not impleaded other legal heirs of deceased Birbal. It has been held by the Supreme Court in Giani Ram's case (supra) that a decree of declaration that alienation shall not affect the reversionary rights enures for the benefit of all the legal heirs. Therefore, the plaintiff as one of the legal heirs of Birbal has a right to claim possession for the benefit of all the legal heirs of Birbal. The judgment of this Court in Murti Shri Durga Bhawani 's case (supra) squarely covers the case of the plaintiff against the defendants-appellant.
14. Thirdly, the defendants-appellant has argued that the plaintiff has not disclosed the names of other legal heirs of Birbal. This argument does not have any effect on the rights of the plaintiff to claim possession on behalf of ail the legal heirs. At best,it could be called irregularity and does not affect the issues raised in the case.
15. Thus, questions No. l and 4 of law framed by the defendants-appellant, are answered against the appellants in view of the judgment in the case of Murti Shri Durga Bhawani's case (supra). It is settled principle of law that one of the co-owners can claim possession for the benefit of all other co-owners as well.
16. As regards questions No. 2 and 5, again it is suffice to say that all the co-sharers are not necessarily to be impleaded as parties to the claim for possession. One of the co-sharers has a right to claim for the benefit of all other co-sharers.
17. In respect of question No.3, it may be stated that the defendants-appellant have not raised any argument at the time of hearing of appeal. Even otherwise, suit for possession consequent to the decree for declaration is maintainable only before the Civil Court.
18. In view of the above, I do not find any merit in the present appeal which is dismissed.
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