HARI SINGH Vs. DHARAM SINGH

JUDGEMENT

(1.) Both the above mentioned civil revisions arise out of the two identical orders of even date viz. 7th April, 1979 of a Sub-Judge 1st Class, Delhi directing the Petitioners Ram Dass and To revise order of Shiva Charan Sub. J. 1st Class, Delhi. D/- 7-4-1970. Ram Singh etc. to file a fresh written statement in the light of the directions given in the order passed by this Court in Civil Revision No. 332 of 1975, Hari Singh v. Dharam Singh and another decided by Deshpande, J., as his Lordship then was on 25th of August, 1976. Ironically, this is the third time that the petitioners have approached this Court, even though the controversy between the parties centres round short point viz., what pleas are open to the legal representatives of a deceased defendant in the written statement which may be filed by them.

(2.) Succinctly, the facts germane to the disposal of these revision petitions are that as far back as 1965 respondents plaintiffs who are descendants of one Fattu instituted two suits, one for recovery of Rs. 4967.63 paise (its present No. being 313 of 1978) and the other for recovery of Rs. 7617.36 paise (its present No. being 314 of 1978) against Hari Singh, Kehri, Raghu Nath and Dharam Singh who are descendants of one Budha. Both the parties are residents of village Basaidarapur. The plaintiffs averred that both the parties from times immemorial held lands in Thok Budha of village Basaidarapur and as such they were entitled to a share in the land of Shamlat Thok Budha in accordance with the area held by them in their individual Khewat i. e. "Hasab rasad raqba khewat". Shri Fattu ancestor of the respondents/plaintiffs had onesixth share in the joint khewat comprising 86 bighas, 5 biswas (pukhta) of land, as per settlement records for the year 1880. Sometime thereafter, he effected a mortgage of his land with conditional sale in favour of one Ganga Sahai. The latter instituted a regular suit (being Suit No. 13 of 1894) against Shri Fattu on the basis of the said mortgage after taking foreclosure proceedings and the suit was eventually decreed by the Extra Assistant Commissioner-Cum-Munsif 1st Grade on 15th March, 1894. Eventually, in execution of the said decree, he obtaid possession of the land on 26th June, 1894 and mutation No. 96, evidencing the said fact, was duly sanctioned on 30th of May, 1896. Subsequently, Ganga Sahai sold the land to S/Shri Hira, Kishan Lal, Hukam and Mohan Lal,-all sons of Budha vide sale 'deed dated 18th July, 1895. Since pukhta bighas were converted into Kham bighas and in the Jamabandi for the year 1894- 95, total area of the joint Khewat No. 53, Khata No. 413 was recorded as 215. bighas and 8 biswas and Shri Fatoo was recorded as having one-fifth share therein. Mutation No. 115 was entered in favour of the aforesaid ancestors of the defendants/ petitioners in respect of sale deed dated 18th July, 1895 and the same was duly sanctioned on 30th May, 1895. Thus the ancestors of the present petitioners were recorded as owners of 43 bighas and one biswa. Subsequently, another mutation of correction bearing No. 472 was recorded on 9th April, 1908 during the Settlement operations of 1908-09, inasmuch as it was noticed that only proprietary rights in the afforesaid land having been sold in favour of the mortgagee Ganga Sahai, Shri Fattoo continued to be recorded as haqdar (owner) of the Shamlat rights corresponding to the aforesaid area. The aforesaid mutation of correction was decided on 30th March, 1909 and it was ordered that the sale of land by Shri Fattoo did not carry with it entitlement to have a corresponding share in the shamlat land and as such the sons of Budha would be recorded as malik qabza while Fattoo would be recorded as haqdar shamlat. However, the order embodied in mutation No. 472 was somehow not incorporated either in misal haqivat i. e. (record of rights) prepared during the Settlement of 1908-09 on the subsequent jomabandis and as such Fattoo was not recorded as haqdar shamlat Thok Budha in respect of aforesaid area of 43 bighas and 1 biswa in the column of ownership. Thus the descendants of Shri Budha are recorded as owners of the land and not malik qabza. Hence the entries in the Jamabandi from the Settlement Year 1908-09 till now do not depict the correct state of affairs. Consequently, on the acquisition of some area of the land comprised in shamlat Thok Budha under the Re-Settlement of the Displaced Persons, Land Acquisition Act 1948, proportionate compensation regarding the same was paid to the defendant/petitioners on the assumption that they were entitled to the corresponding share in the shamlat land on account of their ownership of khewat land which had been purchased by them from Ganga Sahai who had stopped into shoes of Fattoo deceased. Feeling aggrieved the respondents/plaintiffs instituted the above mentioned two suits for recovery of the compensation wrongly paid to the defendants.

(3.) All the defendants filed joint written statement dated 13th May, 1965. Before, however, the suit could make much headway, Kehri who was defendant No. 2 in both the suits died and his sons Ram Dass and Ram Singh were brought on the record as his legal representatives. Since then the question as to what pleas are open to the legal representatives of the deceased defendant has become a bone of contention between (he parties. The stand of the respondents/plaintiffs is that under Order 22, Rule 4 sub-rule (2) of the Code of Civil Procedure (hereinafter referred to as the Code) the legal representatives can take pleas which may be appropriate to their character as legal representatives and they cannot raise a new plea which is inconsistent with the pleas already put forth by the deceased defendant. It is contended that the legal representatives of Kehri deceased in the instant suit have filed a written statement raising pleas which are not only inconsistent with the averments made by the deceased defendant but also have the effect of withdrawing some valuable admissions made by him or which were deemed to have been made by virtue of provisions contained in Order VIII, Rules 3, 4 and 5 of the Code.