DONGER Vs. WASU DEV & OTHERS

JUDGEMENT

(1.) The appellant filed a suit for declaration that he was owner in possession of the suit property and for a permanent injunction restraining the respondent from interfering with his possession. The facts alleged were that the suit property was allotted to Baldev Dass and permanent rights were conferred on him, Vide Sanad, Exhibit P-10. On his death, Brahm Dass succeeded the said property and later on transferred it to the plaintiff vide registered sale-deed Exhibit P-1, dated April 23, 1959.

(2.) The allotment made in favor of Baldev Dass was however, cancelled by the Managing Officer and the land was then allotted to Ladha Ram father of Wasu Ram (Wasu Dev) respondent No. 1. It may be mentioned here that the order of the Managing Officer was confirmed up to the highest authority under the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and the orders of the Rehabilitation Authorities had been confirmed by this Court in L.P.A. No. 216 of 1964 (Brahm Dass v. The Chief Settlement Commissioner), decided on July 23, 1964. The appellant filed the present suit alleging that the orders of the Rehabilitation Authorities were void and not binding on him and he was not served with a notice prior to the passing of the order cancelling the allotment. The trial Court rejected the plaint against the Union of India and Rehabilitation Authorities on the ground that notice under Section 80, Civil Procedure Code was not served upon them prior to the filing of the suit. However, as against respondent No. 1, the plaintiff was granted a declaration that he was the owner in possession and the former was restrained from interfering with his possession. The appeal was filed against the decree of the trial Court only by Wasu Ram (Wasu Dev) respondent No. 1 which was allowed vide judgment dated April 16, 1973 on the ground that plaint has to be rejected as a whole. Aggrieved thereby, the plaintiff has come up in this second appeal.

(3.) The learned counsel for the appellant in the first instance urged that the finding of the trial Court that no notice had been served under Section 80, Civil Procedure Code, upon respondents No. 3 to 6, is based on the mis-reading of the record and, therefore, liable to be reversed. No doubt, it is true that the finding is against the record but it is not possible to give relief to the appellant on this score because he filed no appeal against the decree of the trial Court rejecting the plaint against the said respondent. The contention of the learned counsel that he was not required to file an appeal against which he was required to file appeal. The plaint had been rejected on the ground of non-service of notice upon the respondent under Section 80, Civil Procedure Code, and if he wanted to challenge it he could only do so by way of an appeal. That having been done, it is not open to challenge it in second appeal.