SAUDAGAR SINGH Vs. HARNAM KAUR AND OTHERS

JUDGEMENT

(1.) THIS appeal by the Plaintiff -Appellant is directed against the judgment and decree dated 27.7.1977 passed by the learned Additional District Judge, Faridkot (Camp at Bhatinda) whereby he allowed the appeal of Harnam Kaur Defendant against the judgment and decree dated 26.2.1974 of the learned Sub Judge II Ird Class (A) Bhatinda decreeing the suit of the Plaintiff Appellants for declaration.

(2.) THE Appellants had filed a suit on 6.7.1971 praying for grant of a decree of declaration to the effect that they are owners in possession to the extent of 1/2 share of the land measuring 425 Kanals 16 Marlas situated in village Chak Feteh Singhwala as described therein and that Harnam Kaur had no right, title or interest in the same. It was alleged that the whole of the land in dispute was owned in equal shares by Ghanda Singh and Santa Singh sons of Gurdit Singh. Ganda Singh died in the year 1924 leaving behind Harnam Kaur as his widow. The Appellants are the sons and daughters of Santa Singh. Harnam Kaur performed a Karawa marriage with one Hazura Singh son of Sarup Singh resident of village Mangawala about 45 years before the institution of the suit. Since Ganda Singh and the Appellants were governed by the custom, Harnam Kaur forfeited all her rights in the suit property coming to her from Ganda Singh. It was further alleged that the property was ancestral qua the Appellants and that they alone were the rightful owners of the same and Harnam Kaur had nothing to do with it. They further claimed themselves to be in actual possession of the suit land and thus filed a suit for declaration of their title without seeking any consequential relief. It was further alleged that Harnam Kaur had herself admitted the fact of a Karewa marriage with one Hazura Singh vide affidavit dated 30th October, 1967, Exhibit P.W. 5/2. Harnam Kaur denied all the allegations She admitted that she is the widow of Ganda Singh but emphatically denied having entered into any karewa marriage with one Hazura Singh. She further asserted that she has been continuing as owner in possession of one half share of the suit land all along and as such the suit filed by the Appellants for a simple declaration is not maintainable. She also raised legal objections to the effect that the suit is barred by limitation and the Appellants had no locus standi to file the suit. On the pleadings of the parties, the learned trial Court framed the following issues:

(3.) I have heard the learned Counsel for the parties. The first submission made by the learned Counsel for the Appellant is that Harnam Kaur died on 4.6.1977 during the pendency of the appeal before the learned Additional District Judge. Her legal representatives were not brought on the record and as such the appeal abated. The decree passed by the learned first Appellate Court in her favour on 27.7.1977 is, therefore, a nullity. He urged that the only course open in this situation is that the decree under appeal should be set aside and the case should be remanded to the first Appellate Court for considering the question whether or not the abatement should be set aside and whether the legal representative of Harnam Kaur should be allowed to be brought on the record and then it should decide the appeal on merits. To canvass this proposition, the learned Counsel has placed reliance on Amarsangji Indrasangji v. Desai Umel : A. I. R 1925 Bom 290., Pam Saran Ahir and Ors. v. Prithvi Nath Singh : A. I. R. 1952 Pat 267., State of Gujarat v. Chandramani Shanker Jadhavial Sanghvi, A. I. R. 1963 Guj 243., Jiviben Lavji Rananath v. Jadavji Deveshanker : A. I. R. 1978 Guj. 32. I am of the view that this contention of the learned Counsel has no force. Harnam Kaur died on 4.6.1977. Order 22 Rule 3 read with Rule 11, Code of Civil Procedure Code, and Article 120 of the Schedule to the Limitation Act 1963 provide that where a sole surviving Appellant dies and the right to sue survives, the court on an application made in that behalf shall cause the legal representatives of the deceased -Appellant to be made a party and shall proceed with the appeal. Where within the period of 90 days no application is made for bringing on record the legal representatives of the Appellant, the appeal shall abate. Thus the abatement of the appeal was to take place on the expiry of the period of 90 days from 4.6.1977. However, much before that the appeal was heard and decided by the learned Additional District Judge on 27.7.1977. All the precedents cited by the learned Counsel for the Appellant pertain to appeals or suits which had abated on expiry of the period of limitation and the legal representatives of the deceased Appellant having not been brought on the record. The present case is, therefore, clearly distinguishable. In fact, this matter stood already concluded by an order dated September, 8, 1981 by J. M. Tandon, J. (as he then was) while deciding Civil Misc. Nos. 1183 -C of 1981, 2262 -C of 1978 and 2031 -C of 1978. The following observations from the said order are relevant: