JASWANT SINGH Vs. MOHINDER KAUR

JUDGEMENT

(1.) THIS order will dispose of Regular Second Appeal No. 155 of 1987 (Iqbal Singh Vs.Mohinder Kaur (dead) through her LRs namely Gamdoor Singh etc.) and Civil Revision No. 3607 of 1986 namely Gamdoor Singh etc.), because both these have arisen out of the same set of facts.

(2.) LEARNED counsel for the parties are ad idem that decision of the RSA shall depend on the decision of the civil revision. Facts first. Smt. Mohinder Kaur filed civil suit No. 548 dated 15.9.1978 against Jaswant Singh and others for declaration and possession qua land measuring 20 kanals 7 marlas, i.e. 1/9th share in the land measuring 183 kanals 4 marlas situated in the area of Patti Megh Singh, Muktsar. Jaswant Singh and others -present petitioners in the civil revision, did not contest the suit and finally, vide judgment and decree dated 23.10.1981 (Annexure P -1), suit of Smt. Mohinder Kaur was decreed only for declaration to the effect that she was owner to the extent of 1/9th share in the joint khewat comprising khasra No. 749, 745, 746, 748, 755, 758, 760, 761, 946 and 1006. Relief for possession was specifically declined. This judgment and decree dated 23.10.1981 was not challenged by either of the parties by way of any further appeal. Petitioners in the present civil revision did not file any appeal, because they were not feeling aggrieved by decree dated 23.10.1981 (Annexure P -1). However, on the basis of decree dated 23.10.1981 (Annexure P -1), Smt. Mohinder Kaur got the mutation sanctioned in her favour even qua khasra No. 757, allotted in lieu of khewat and khasra No. 261/268, although this khasra No. 757 was not part of the decree.

(3.) SMT . Mohinder Kaur filed her first appeal against the abovesaid decree and judgment dated 29.1.1985 against Iqbal Singh -plaintiff, which came to be allowed by the lower appellate court, vide judgment dated 15.10.1986, primarily on the strength of the above said order dated 2.6.1986 whereby original judgment and decree dated 23.10.1981 was amended. Feeling aggrieved against judgment of reversal, Iqbal Singh filed the regular second appeal. The appeal was admitted and the civil revision as well as the regular second appeal were ordered to be heard together. That is how, this Court is seized of the matter. Learned counsel for the petitioners -Jaswant Singh and others in the civil revision as well as for Iqbal Singh in the regular second appeal, submits that the learned trial court exceeded its jurisdiction while passing the impugned order dated 2.6.1986 (Annexure P -2). The learned trial court also fell into serious error of law, while passing the impugned order dated 24.9.1986, while not setting aside the ex parte order dated 2.6.1986. He further submits that so far as the original decree dated 23.10.1981 (Annexure P -1) was concerned, the petitioners and the appellant were not aggrieved against the same, because Smt. Mohinder Kaur was declared to have no right in old khewat and khasra No. 261/268 in lieu of which new khasra No. 757 came to be allotted. Since they were not aggrieved, they did not challenge the original decree dated 23.10.1981. However, passing of the impugned order dated 2.6.1986, thereby amending the decree and including khasra No. 757 therein, was wholly without jurisdiction, because this order was passed even without issuing notice to the petitioners -Jaswant Singh and others. When this fact was brought to the notice of the learned trial court by moving an application seeking setting aside the ex parte order dated 2.6.1986, even this application was also dismissed by the learned trial court, vide order dated 24.9.1986. He next contended that since the impugned judgment in the regular second appeal is based on the impugned order dated 2.6.1986, the same was also not sustainable in law. To substantiate his arguments, learned counsel for the petitioners relies upon two judgments in Kanda and others Vs. Waghu, AIR (37) 1950 Privy Council, 68 and Union of India Vs. Smt. Pratap Kaur (dead) through LRs and another, JT 1995 (2) SC 569. Finally, he prays for setting aside the orders dated 2.6.1986 as well as 24.9.1986 impugned in the civil revision and also the judgment dated 15.10.1986 passed by the learned lower appellate court impugned in the regular second appeal, by allowing the appeal as well as civil revision.