IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 499/1998 Reserved on:30.3.2009 Decided on:2.4.2009 Jagdish Ram …Appellant. Versus Smt. Shiv Dei and others. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the appellant : Mr. Bhupender Gupta, Senior Advocate with Mr. Neeraj Gupta, Advocate. For the Respondents : Mr. Shrawan Dogra, Advocate. Rajiv Sharma, J. The present Regular Second Appeal has been directed against the judgment and decree dated 13.10.1998 passed by the learned District Judge, Bilaspur, Himachal Pradesh in civil appeal No. 91 of 1995. Brief facts necessary for the adjudication of this Regular Second Appeal are that the plaintiff-respondent (hereinafter referred to as ‘the plaintiff’ for convenience sake) filed a suit for declaration and also for permanent prohibitory injunction. He had sought for the following reliefs as per plaint: 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 (a) Plaintiff is joint owner in possession over the land measuring 9-19 bighas comprised in Khasra No. 177 Khewat No. 35 min Khatoni No. 44 and land measuring 0-6 biswas comprised in khasra No. 106 Khewat No. 62 Khatoni No. 77 situated in village Pehrwin pargna Tiun Tehsil Ghumarwin, District Bilaspur, H.P.( to the extent of plaintiff’s share) with the defendants. (b) Plaintiff is entitle for the decree of permanent injunction restraining the defendant No.1 from making any interference in the share of the plaintiff in the land mentioned in para No.1 of the plaint by any ways, means and manners; (c) In alternative decree for joint possession (of the share of plaintiff) in the land mentioned above if the plaintiff is dispossessed during the pendency of the suit or not found in possession jointly over the share in the land mentioned above and any other relief which the Hon’ble court deems fit may kindly be passed in favour of the plaintiff and against the defendant No.1 with costs.” The learned trial court dismissed the suit on 20.3.1995. The plaintiff filed an appeal before the learned District Judge, Bilaspur. The learned District Judge, Bilaspur allowed the appeal and passed the final order to the following order: “In view of my findings on point No.1 above, the appeal is allowed and the judgment and decree, passed by the learned trial court is set aside. The suit of the plaintiff is decree with costs. Decree-sheet be prepared accordingly. The record of the learned trial court alongwith copy of this judgment be sent back forthwith. The file of this judgment be sent back forthwith. The file of this court be consigned to record room after due completion.” The learned District Judge has allowed the appeal on 13.10.1998. It is not disputed by the parties that during the pendency of this appeal 3 respondent No. 2 and 3 in first appellate court, Smt. Sarvnu and Sh. Jeet Ram alias Narain Dass died on 24.1.1998 and 7.1.1998, respectively. The appellant-defendant (hereinafter referred to as ‘the defendant’ for convenience sake) has filed this Regular Second Appeal against the judgment and decree dated 13.10.1998 passed by the learned District Judge, Bilaspur. The same was admitted on the following substantial questions of law: 1. ."Whether the appeal before the learned lower appellate court was not maintainable on account of the death of Smt. Sarvnu and Sh. Jeet Ram alias Narain Dass, is not the judgment and decree passed by the learned lower appellate court vitiated since the appeal stood abated on the date the same was heard and decided? 2. Whether the findings of the lower appellate court that the entries in the revenue record in favour of defendant- appellant were changed un-authorisedly are erroneous and perverse in the face of Exts.P-3 and P-4? 3. Whether the entries in the revenue record showing the exclusive possession of defendant-appellant over the suit land which was also established from the oral evidence and findings as returned by the trial court could have been negatived on merely conjectures and surmises when the plaintiff failed to established her possession over the suit land? 4. Whether the judgment and decree passed by the learned lower appellate court suffers from serious procedural error as the same is not in conformity with the provisions of the Code of Civil Procedure. Is not the decree of the lower Appellate Court vague which do not depict clearly as to what relief the plaintiff-respondent has been granted and on what basis? 5. Whether without the findings of the lower Appellate Court regarding the exclusive possession of the plaintiff- respondent over the suit land, the plaintiff respondent’s suit could be decreed for injunction? 4 6. Whether the findings of the lower Appellate Court not upholding the adverse possession of the defendant- appellant are illegal, erroneous and perverse? 7. Whether the lower Appellate Court has misread and misconstrued Exts.DW-1/A and DW-4/A and relied wrong proposition of law in disposing of the appeal?” Mr. Bhupender Gupta, Senior Advocate has strenuously argued that the judgment and decree passed by the learned District Judge on 13.10.1998 is not sustainable in the eyes of law for the simple reason that respondents No.2 and 3 have died during the pendency of the appeal before pronouncement of the judgment and suit had abated. He also contended that this question whether the suit has abated or not can be seen by the first appellate court alone. Mr. Shrawan Dogra, Advocate has submitted that respondents No.2 and 3 were proforma defendants and according to him the judgment and decree passed by the learned District Judge is valid in law. Mr. Bhupender Gupta, Senior Advocate during the course of hearing of this Regular Second Appeal has confined his submission to substantial question of law No.1. I have heard the learned counsel for the parties and perused the record carefully. The relief sought for by the plaintiff has already been re-produced hereinabove. It is not in dispute that the suit preferred by the plaintiff was dismissed by the trial court. However, the suit has been decreed by the learned first appellate court on 13.10.1998. In view of the judgment and decree passed by the learned District Judge, the plaintiff has been held to be co-owner in the suit property with proforma defendants. It is not a case where the proforma defendants have not been granted any relief. In these circumstances it was necessary for the plaintiff to take appropriate steps 5 for bringing on record the legal representatives/ legal heirs of respondents Smt. Sarvnu and Sh. Jeet Ram. Now, the question arises whether this court will look into this aspect or it is for the first appellate court to go into the entire gamut to see the effect of the death of respondents No.2 and 3 during the pendency of the appeal. I am of the considered opinion that this issue in the present facts and circumstances of the case is to be looked into by the first appellate court alone. The learned Single Judge of the this High Court in Sher Singh and others versus Raghu Ram and others, 1981 S.L.C. 25 has held that an application for setting aside the abatement and substituting heirs of deceased defendant should have been made and dealt with by the trial court in which the abatement occurred. The learned Single Judge has held as under: “On the facts narrated above and which are not in dispute, I find that the learned Additional District Judge had no jurisdiction to entertain or dispose of the plaintiffs’ application under order 22, rules 4 and 9 of the Code and that the impugned order is liable to be quashed as a whole on this short ground alone. The proceedings under order 22, whether these be for bringing on record the legal representatives of a deceased party or for setting aside the abatement, must, in my view, be initiated in the Court where the lis was pending at the time of the death of the party and such Court along has the jurisdiction to entertain such proceedings. The reason is obvious and is not far off to seek. It is only when a party to a lis or appeal dies be, that the necessity of substituting the legal representatives of such deceased party can arise and an application under order 22, rules 3, 4 or 9, as the case may be would lie. In case the death occurs prior to the institution or after the disposal of such a list, no 6 question would arise for bringing on record the legal representatives of the deceased, inasmuch as the legal representatives are to be impleaded on the record of a pending lis only. The only exception to this can be conceived where proceedings under order 22 are initiated in the appellate Court in respect of an appeal against a judgment to which the provisions of order 22, rule 6 can be attracted. It, therefore, follows that if a party was already dead on the commencement of the lis, the provisions of order 22 would not be attracted except in the case where the provisions of order 22, rule 6 are applicable.” Similar view has been taken by the learned Single Judge in Ram Rakha and others versus Brahma Nand and others, 1994 (Supp.) S.L.C. 29. The learned Single Judge has held as under: “One of the grounds of appeal pertaining to the aforesaid preliminary substantial question of law so raised by Shri Kapil Dev Sood, appearing on behalf of the appellants that the impugned judgment passed by the learned District Judge is a nullity inasmuch as it has been passed against one of the dead landowners. It is well settled that ordinarily a decree passed against a dead person is a nullity except in those cases where the person died after the hearing of the arguments but before pronouncing of the judgment by the courts below. Another established principle is that the question whether the suit is bated in toto or in part, has also to be decided by the same court where during the pendency of the appeal one of the parties had expired before hearing the arguments and where he being a necessary party to the lis, his legal representatives have not been brought on record.” Similarly, the learned Single Judge in Jagdish versus Ram Karan and others. 2002 (1) Cur. L.J. (H.P.) 232 has held that whether there was sufficient cause for setting aside the abatement or whether the legal 7 representatives of the deceased are to be brought on record or not in relation to a suit or appeal at the first instance is to be decided by the court in which the suit or appeal was pending at the time of the death of the party and the abatement took place. In view of the above discussion, there is no alternate than to set aside the impugned judgment and decree and to remand the case to the lower appellate court. Consequently the impugned judgment and decree dated 13.10.1998 are set aside and civil appeal No. 91 of 1995 is remanded back to the learned District Judge, Bilaspur. The learned District Judge, Bilaspur after restoring the appeal to its original number and date permit the respondent-plaintiff to take such steps as are permissible to him under law and offer opportunity to the opposite party to take objection thereto and thereafter take a decision in accordance with law. The appeal is disposed of in the terms of above order. Since the matter is old, to avoid the delay, the first appellate court is directed to dispose of the same as expeditiously as possible preferably within three months. The parties through their counsel are directed to appear before the first appellate court on 17.4.2009. There will, however, be no order as to costs. 2.4.2009 (Rajiv Sharma ), J. *awasthi*