Shri Bhagwan Singh and Others vs Smt. Surati Devi and Others

Mungeshwar Sahoo, J.—The plaintiffs have filed this Second Appeal against the judgment and decree dated 27.02.1986 passed by the learned Additional District Judge 9th, Patna in Title Appeal No. 102 of 1976/13 of 1985 whereby the learned Lower Appellate Court allowed the appeal and thereby reversed the judgment and decree of the trial court dated 29.06.1976 passed by the learned Additional Munsif, Danapur in Title Suit No. 15 of 1970/72 of 1975. The plaintiffs filed the aforesaid suit in the representative capacity under Order 1 Rule 8 C.P.C. for declaration that the suit property is the public property and they have got absolute right to use the same without any obstruction from the defendants.

The plaintiff claimed the aforesaid relief alleging that they are the representatives of village Kalapur and Bhagwanpur. The suit properties being plot No. 325, 441, 455 are Ahar Dagar and Garha. Plot No. 819 is Ahar with a peepal tree. All these plots are recorded as Gair Majarua Aam in the survey record of right. During rainy season, water accumulates in plot No. 819 and 325 and the public at large of both the villages uses that water for irrigation purpose and the villagers have been enjoying the right of irrigation peacefully, continuously and openly as of right and without any hindrance and defendant never has any right or title to object the same right. Plot No. 455 is Garha. The defendants illegally cultivated the potato crops on plot No. 441 and, therefore, the suit was instituted.

The defendants-respondents filed contesting written statement and according to the defendant No. 1, plot No. 441 and 455 was settled with the defendants by registered deed of settlement dated 26.02.1952 by the ex-landlord Malik Jagarnath Prasad and Deokinandan Prasad Singh and since then they are in exclusive possession of the property. The ex-landlord recognized the defendants as tenant and was granting rent receipt against the payment of rent. After vesting, the State of Bihar recognized the defendants as tenant. The defendant No. 1 has also sold 14 decimals of plot No. 441 to defendant No. 3 by registered sale deed dated 18.07.1960 who came in possession and is paying rent to the State of Bihar. Plot No. 455 is not the public land. All other allegations made by the plaintiffs were denied.

The trial court disbelieved the registered settlement deed, Exhibit A filed by the defendants on the ground that the witness, D.W. 5 who proved the deed has stated that this document was not executed in his presence and further that although, the defendant took settlement in the year 1952 and the suit was filed in the year 1970 i.e. more than 12 years after the defendant is said to have come in possession. The learned trial court also held that the ex-landlord had no right to settle the Gair Majarua Aam land. Accordingly, the plaintiffs suit was decreed.

The defendants filed title appeal before the Lower Appellate Court. The Lower Appellate Court relied upon the registered settlement deed of the year 1952, Exhibit A and held that the plaintiffs failed to prove that in fact, the suit land is the public land. Accordingly, the judgment and decree of the trial court was set aside and the plaintiffs suit was dismissed.

At the time of admission on 15.01.1992, the following substantial question of law was formulated:

Whether the decree passed by the court below is a nullity on account of the fact that respondent No. 3 and 5 (in the court below) died during the pendency of the appeal and their heirs were not brought on the record?

The learned counsel, Mr. Pramod Kumar Singh appearing on behalf of the appellants in addition to the above substantial question of law formulated, raised another substantial question of law to the effect that whether the ex-landlord has the power to settle the Gair Majarua Aam land i.e. public land. The learned counsel submitted that it is settled principles of law that a decree passed against a dead person is a nullity. In the present case, the plaintiffs suit was decreed by the trial court. Two of the plaintiffs were made respondent Nos. 3 and 5 in the appeal of the defendants before the Lower Appellate Court. During the pendency of the appeal, said both respondents died but no substitution was made, therefore, in view of the settled proposition of law, the decree is liable to be set aside because it is a nullity. According to the learned counsel, no opportunity was granted to the present appellant for hearing in title appeal, therefore, this fact should not be brought to the notice of the court. So far the substantial question of law raised during hearing is concerned, according to the learned counsel, Gair Majarua Aam land could not have settled by the ex-landlord.

It may be mentioned here that although, notices have already been issued to the respondents and the name of the learned counsel for the respondents is printed in the daily cause list, nobody appeared.

From perusal of the judgment of the Lower Appellate Court, it appears that during the hearing of the title appeal before the Lower Appellate Court, nobody appeared on the behalf of the respondents i.e. the present appellants and, therefore, in absence of the plaintiffs-appellants, the appeal was decided. In view of the above facts, the submission of the learned counsel that no opportunity was granted is concerned, it is not acceptable. So far the substantial question of law formulated is concerned, it may be mentioned here that the question as to the date or year of death of plaintiff-respondent Nos. 3 and 5 mentioned in the memo of appeal i.e. in the grounds of the second appeal is not supported by affidavit and moreover, it is a pure question of fact which is being raised before this court for the first time. Unless a finding is recorded by this court that in fact, the respondent Nos. 3 and 5 died on such and such date (as mentioned in the memo of appeal), no order can be passed on the question of abatement. The second aspect of the matter is that the suit was filed by the plaintiffs in the representative capacity under Order 1 Rule 8 C.P.C. It is settled principles of law that when a representative suit is brought under Order 1 Rule 8 C.P.C., the persons or person appointed to conduct it are the only necessary parties. Others need not be shows as parties and if one or the others die, the suit does not abate because the suit being a representative suit, the other persons represented by the parties on record are constructively parties to the suit. If the person who is appointed to conduct the suit died, any other person interested may apply to be appointed under this rule. Therefore, in both the account, the substantial questions of law formulated do not arise for consideration in this second appeal.

So far the question raised at the time of hearing is concerned, it may be mentioned here that a Division Bench of this court in the case of Mohammad Ahsan Vs. State of Bihar, has held that it cannot be said that the landlord is absolutely debarred from making settlement of Gair Majarua Aam land vide paragraph 6. It may be mentioned here that the settlement deed is a registered document, Exhibit A. The settlement deed was never challenged by anybody. In such view of the matter at this stage, now it cannot be said that no title conferred on the defendants on the basis of this Exhibit A. In view of the above settled proposition of law laid down by the Division Bench, this substantial question of law also do not arise for consideration in this Second Appeal. Accordingly, the answer is against the appellants. Thus, this Second Appeal is dismissed. No order as to cost.