Raghunandan Prasad and others vs Ramavtar and others

This second appeal is directed against the judgment and decree dated 14.07.2005 passed in Civil Appeal No.115- A/2004 passed by VI th Additional District Judge (Fast Track

Court), Rewa in which interference was declined against the

judgment and decree dated 01.09.2003 passed in Civil Suit

No.30-A/2000 passed by the 1st Additional Civil Judge Class I

Rewa.

Brief facts narrated by the appellants are that the

respondent Nos.1 and 2 filed the instant civil suit against the

rest of the respondents claiming relief of possession. The said

civil suit was instituted on 27.09.1977. It was alleged that the

suit lands bearing Khasra Nos.669, 674 and land bearing

Khasra Nos.310 and 313 located at Village Simaria, Tehsil

Sirmour, District Rewa were allotted to them in partition. It was averred in the plaint that defendants have forcibly taken

possession of the suit lands. Hence, the said suit claiming

possession and mense profit was instituted.

In appeal, the appellants have mentioned the

genealogical tree, which is reproduced hereinunder:

Chandu Ram

Anantram Shivsahayram Ramsahay

Kashi Prasad Dadua Ram Govind Prasad Hanuman Prasad Ganda prasad Jagatdev (D-4) Ram Avtar Shesh Mani (P-1) (P-2) Ram Milan Nand Kishore (D-2) Govindram Chunkai (D-3)

Shri Sankalp Kochar, learned counsel for the

appellants contends that defendant Nos.1 to 3 and

original defendant No.2, namely, Shri Nand Kishore

expired during the pendency of the suit. The defendant

Nos.1 to 3 filed a common written statement stating that

as per the partition, the suit lands were allotted to the

sons of Anantram. The land bearing Survey No.669 and 667 were sold to Shri Chandra Bhan Kachi, who is

admittedly father of present appellant Nos.2 & 3. This

sale took place through registered sale deed dated

13.03.1975. It is stated that by order dated 26.06.1977,

the name of Late Chandra Bhan was duly mutated in the

revenue records.

Learned trial Court framed the issues, recorded

evidence and disposed of the suit vide judgment and

decree dated 01.09.2003. To elaborate, it is contended

that the defendant No.1 is not son of Chandra Bhan and

he had no knowledge whatsoever about the litigation

gonging on before the trial Court. The appellant No.1

after making due inquiry found that the name of original

defendant No.2, namely, Nand Kishore is recorded in the

revenue records. Thus by registered sale deed dated

18.02.1987, he purchased the land bearing Khasra

No.674 ad-measuring 1.03 acres for a valuable

consideration of Rs.15,500/-. It is stated that his name

was duly mutated in the revenue records by order dated

31.12.1988.

It is urged that parties to the suit were fully aware

about the alienation of the property but they did not bring the relevant facts to the notice of the learned trial

Court. It is submitted that the legal representative of

Nand Kishore colluded with plaintiff and filed an

application for recording the settlement under Order 23

Rule 3 of Code of Civil Procedure (CPC). It is submitted

that although the said application was not signed by all

the parties to the suit, the application was allowed and

the trial Court recorded the compromise and disposed of

the suit vide judgment and decree dated 01.09.2003. On

the basis of settlement, it was decided that the plaintiff

No.1 shall be the owner of the land bearing Khasra

Nos.669 and Khasra No.674. Further direction is that

defendant Nos.1 to 3 shall deliver the possession of

aforesaid lands to the plaintiff No.1. Learned trial Court

further held that the land bearing Khasra No.669 shall be

allotted to defendant No.3. However, the claim in respect

of the mense profit was rejected by the trial Court.

The appellants contend that the appellant No.1 was

not aware about the pendency of the litigation between

the members of the family. Shri Sankalp Kochar, learned

counsel for the appellants, by taking this court to the

application preferred under Order 1 Rule 10 of CPC submits that it was not filed by Chandra Bhan. Even

assuming that such an application was filed, the

application shows that for want of better particulars in

the suit, Chandra Bhan took a stand that it is not clear

that how he was a necessary party. Shri Kochar submits

that in the appeal before the 1 st Appellate Court, the

present appellants have taken a categorical stand that such application under Order 1 Rule 10 of CPC was never

filed by Chandra Bhan. However, the Court below did not

deal with this contention at all.

The lower Appellate Court dismissed the appeal by

impugned judgment. The appeal was dismissed mainly on

two counts : (a) the appellants were not party in the civil

suit, therefore, they have no right to prefer an appeal; (b)

the appeal was barred by time.

Criticizing these findings, Shri Kochar submits that it

was specific case of the appellants that they were not

aware about the pendency of the aforesaid civil suit.

However, they are adversely affected by the outcome of

the said suit. They were in continuous possession of the

suit property and, therefore, judgment and decree will

have a drastic impact on their right to continue. Hence, the appellants had locus standi to assail the judgment

passed by the trial Court. In support of his contention, he

relied on certain judgments of Supreme Court.

So far question of limitation is concerned, Shri

Kochar submits that judgment of trial Court dated

01.09.2003, a first appeal was preferred on 24.11.2003,

hence it was preferred well within the time and there was

no delay at all.

No other point is pressed by the learned counsel for

the appellants.

I have heard the counsel and perused the record.

This Court on 01.07.2009 framed following

substantial questions of law:

''(1) Whether the lower appellate Court has committed an error in holding that the appellant is not entitled to file the appeal when a compromise decree having an adverse effect on the right of the appellant, which had accrued to him by virtue of purchase of property is passed against him.

(2) Whether the finding recorded by the trial Court that sufficient cause for condoning the delay is not shown is a correct finding based on the material available on record and is a perverse finding.''

As to question No.1: A plain reading of the judgment

of 1st Appellate Court makes it clear that its view was that

the appellants were not party before the trial Court. The appellants have not shown any legal authority to show

that the appellants who were not a party before the trial

Court, have the locus standi to file the appeal. In the

opinion of this Court, Sections 96 and 100 of CPC do not

enumerate the categories of of persons who can file an

appeal. After taking note the judgments of Supreme

Court reported in AIR 1967 SC 1470 (Phoolchand Vs.

Gopal Lal), 1970 (3) SCC 573 (Jatan Kumar Golcha Vs.

Golcha Properties (P) Ltd.), and 1974 (2) SCC 393

(Ganga Bai Vs. Vijay Kumar), the Apex Court in 2003

(9) SCC 606 (Banarsi and others Vs. Ram Phal) held

that it is settled by a long catena of decisions that to be

entitled to file an appeal, the person must be one

''aggrieved'' by the decre. Unless a person is

prejudically or adversely affected by the decree, he is not

entitled to file an appeal.

In 2013 (9) SCC 261 (Harvinder Singh Vs. Paramjit

Singh), it was held that if a judgment and decree prejudically

affects a person, needless to emphasize he can prefer an

appeal. Thus, as a thumb rule or a straight jacket formula, it

cannot be said that the persons who were not party to the

civil suit cannot file the appeal. If appellants are able to establish that they are ''persons aggrieved'' or

''prejudically affected'' by the judgment and decree, they

can very well assail the judgment and decree passed by the

competent Court. Pertinently, the lower appellate Court has

not given any finding whether appellants are aggrieved

persons or not. The appeal has been dismissed solely on the

ground that the appellants were not party to the civil suit.

The lower appellate Court did not deal with the contentions of

the appellants that actually no such application under Order 1

Rule 10 of CPC dated 23.09.1993 was filed by Chandra Bhan.

The Court below also did not deal with contention of

appellant No.1 that he is not son/legal representative of

Chandra Bhan and, therefore, even if Chandra Bhan had

preferred any application under Order 1 Rule 10 of CPC, it

will have no impact on his case. In the light of aforesaid, I am

unable to countenance the judgment impugned herein,

wherein it is held that being non-parties to the civil suit, the

appellants had no locus standi/right to assail the judgment

passed by the trial Court. The lower appellate Court is

required to examine whether the appellants are ''persons

aggrieved'' and then decide the question of their locus

standi.

As to question No.2: As noticed, the judgment of the trial

Court was passed on 01.09.2003 and appeal was preferred on

24.11.2003. The appeal is preferred within the prescribed

period of limitation from the date of obtaining certified copy

of the order of the trial Court. Thus, the appeal is within the

time and the Court below has erred in rejecting the appeal on

the ground of limitation. On the basis of foregoing analysis,

the judgment and decree dated 14.07.2005 is set aside. The

matter is remitted back to the lower appellate Court with the

direction to examine whether the appellants are ''person

aggrieved'' and then proceed with the matter in

accordance with law and decide it expeditiously. It is made

clear that this Court has not given any finding on the merits

of the case or on the aspect whether the appellants are

actually ''persons aggrieved''. This aspect needs to be

decided by the learned Court below.

Resultantly, the judgment and decree is set aside. The

appeal is allowed to the extent indicated hereinabove.