RAM KISHAN Vs. ARJUN

JUDGEMENT

(1.) C.M. No. 14249 -C of 2014

(2.) It is the contention of the learned counsel for the appellant that the predecessor -in -interest of the property in question measuring 8 Kanal 8 Marla was holding the land as a Gair Marusi tenant. He contends that as the said tenancy is inheritable, the appellant -plaintiff has a share in the said property. A suit was filed by the respondent -Arjun, who is real brother of appellant, for declaration to the effect that he is owner -in -possession of 8 Kanal and 8 Marla of land, which was decreed by the Sub -Judge, Second Class, Ambala City on 20.12.1982. In pursuance to the said decree, mutation dated 29.06.1987 was sanctioned in favour of his brother respondent -defendant. He contends that in the said suit, the appellant -plaintiff, who has equal rights to the property, has not been impleaded as a party and, therefore, the said judgment and decree is not binding on him and inoperative. He further states that the said decree is void ab -initio as it is a result of fraud having been played upon the Court by not impleading him as a party although he was a necessary party and for challenging the said decree, there is no limitation and the same can be set aside at any stage. In support of this contention, he has placed reliance upon a judgment of the Supreme Court in S.P. Changalvaraya Naidu (dead) by L.Rs. vs. Jagannath (dead) by L.Rs.,, 1994 (1) R.R.R. 253. His further contention is that the decree passed by a Court without jurisdiction is a nullity and, therefore, it also can be challenged at any stage. In support of this contention, he places reliance upon the judgment of the Supreme Court in Mantoo Sarkar vs. Oriental Insurance Co. Ltd. and others, : 2009 (1) R.C.R. (Civil) 417. Prayer has, thus, been made for setting aside the impugned judgments and decree passed by the Courts below and for decreeing the suit of the appellant -plaintiff.

(3.) I have considered the submissions made by the learned counsel for the appellant and with his assistance, have gone through the impugned judgments.