IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Civil Review No. 16 of 2011. Judgment reserved on : 04.05.2011. Date of decision: 09.05.2011 . _______________________________________________________ Ranvir Singh & Ors. ….. Petitioners. Versus Parduman Singh. ……Respondent. _________________________________________________________ For the Petitioners : Mr. B.K. Malhotra, Advocate. For the Respondent : Mr. Shrawan Dogra, Advocate. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes Kuldip Singh, Judge . This review petition has been filed for reviewing judgment dated 23.11.2010 passed in CMP (M) Nos. 865 and 866 of 2009 and RSA No. 91 of 2000. 2. The facts, in brief, are that Praduman Singh and Basant Singh, brothers, had filed a suit for permanent injunction restraining Narain Singh and Ranbir Singh from raising any construction over the suit land or changing the nature thereof. In case, some construction was raised by them during the pendency of the suit over the suit land, then a decree for joint possession after ordering demolition of such construction was also prayed till partition. 3. In the suit, Praduman Singh and Basant Singh had pleaded that shares recorded in the jamabandi 1985-86 were wrong. Whether the reporters of the local papers may be allowed to see the Judgment? Yes 2 They were owners in possession of 2/3rd shares and Narain Singh was owner in possession of 1/3rd share. The mutation on the basis of which wrong entries incorporated in the jamabandi was wrongly attested in favour of Narain Singh on the basis of forged document described as a Will which, in fact, was not Will by Smt. Bhajyali in favour of Narain Singh regarding the suit land to the extent of 2/3rd shares. Smt. Bhajyali had executed last Will in favour of Praduman Singh and Basant Singh. 4. The Trial Court held that Praduman Singh and Basant Singh were owners in possession to the extent of 2/3rd shares as co- sharers in the suit land and the relevant revenue entries were wrong. Smt. Bhajyali had executed Will in favour of Praduman Singh and Basant Singh. The mutation attested in favour of Narain Singh was wrong. Smt. Bhajyali had not executed any Will in favour of Narain Singh. The proposed construction on the suit land amounts to infringement of rights of Praduman Singh and Basant Singh. The learned District Judge on 30.09.1999 upheld the judgment and decree dated 29.12.1994 of the Trial Court. 5. Narain Singh and Ranbir Singh filed second appeal against the judgment, decree dated 30.09.1999. Narain Singh died and his legal representatives were brought on record. Basant Singh died, CMP (M) No. 865 of 2009 under Order 22 Rules 4, 9 read with Section 151 CPC was filed for bringing on record legal representatives of Basant Singh after setting aside abatement, if any, of the appeal. CMP (M) No. 866 of 2009 was filed for condonation of delay in filing CMP (M) No. 865 of 2009. Both these applications were disposed of by judgment dated 23.11.2010, it was held that 3 appellants have failed to make out any case for condonation of delay, setting aside abatement and bringing on record legal representatives of Basant Singh. 6. The petitioners have filed review petition on the grounds that on 22.11.2010 application for bringing on record legal representatives of deceased Basant Singh was under consideration and the point of abatement of appeal was neither considered nor it was argued. Therefore, deciding the appeal without hearing the petitioner on the point of abatement has resulted in miscarriage of justice. There is error apparent on the face of the record. The suit filed by the respondents was only for decree of injunction restraining original defendant No.1 Narain Singh co-sharer from constructing on joint land which decree was given to them by the Courts below. In this situation, death of Basant Singh would not have resulted in dismissal of the appeal as a whole. The Court has mis-construed reasons given in CMP (M) Nos. 865 and 866 of 2009. 7. I have heard learned counsel for the parties. The learned counsel for the petitioners in support of his contentions has relied ‘Works Manager, Central Rly, Workshop Jhansi versus Vishwanath and others AIR 1970 SC 488, Shiv Ram and others versus Bhagat Ram and Others, ILR 1978 Him.Series 158, Rajender Singh versus Lt. Governor, Andaman & Nicobar Islands and others, AIR 2006 SC 75, Rahilmulla versus Zahur Mohammad and Others, AIR 1972 Rajasthan 118’. He has also submitted that ‘in Katari Suryanarayana & Ors. V. Koppisetti Subba Rao & Ors. AIR 2009 SC 2907 referred to in the judgment dated 23.11.2010 is not applicable in the facts and circumstances of the case. 4 8. At the outset, it is important to note that on 04.05.2011 at the time of hearing of this petition, the learned counsel for the petitioners has submitted that when CMP (M) Nos. 865 and 866 of 2009 were argued, the question of abatement of appeal was not argued. The learned counsel for the respondent, on the other hand, has stated that this question was argued. No doubt, the prayer made in the suit was for injunction, but the respondent and deceased- plaintiff Basant Singh had invited judgment regarding their rights in the property which included issues whether plaintiffs were owners in possession to the extent of 2/3rd shares as co-sharers. Smt. Bhajyali had executed Will in their favour and Smt. Bhajyali had not executed Will in favour of Narain Singh. These issues were decided in favour of plaintiffs. Therefore, it can be safely concluded that suit was not simple permanent prohibitory injunction but implicitly it was for declaration of rights of plaintiffs also. The Courts below after recording the findings on the Wills and shares in favour of plaintiffs decreed their suit. 9. In CMP (M) No. 865 of 2009, the petitioners had prayed for setting aside of abatement, if any. In the review petition, it has been stated that the point of abatement of appeal was not under consideration nor it was ever argued. At the time of hearing of the review petition, the learned counsel for the petitioners has submitted that when CMP (M) Nos. 865 and 866 of 2009 were argued, the question of abatement of appeal was not argued. The question of abatement of appeal in CMP (M) No. 865 of 2009 was very much in question inasmuch as the petitioners in the application have prayed for setting aside abatement of the appeal, if any. The learned counsel 5 for the respondent has submitted that question of abatement was argued. In case the question of abatement was not argued by the petitioners as contended by the learned counsel for the petitioners, then, it is nothing but not pressing the question of abatement of appeal and acceptance of the stand of the other side that the appeal has abated. 10. This Court has decided CMP (M) No. 865 of 2009 and held that petitioners/appellants have failed to make out any case for condonation of delay, setting aside abatement and bringing on record legal representatives of Basant Singh. Once the prayer of the petitioners for setting aside abatement was rejected, the necessary consequence was abatement of the appeal which was ordered accordingly while deciding CMP (M) Nos. 865 and 866 of 2009. In Rajinder Singh (supra) the Supreme Court has held that the order passed without deciding the important issues and by ignoring material on record amounts to error apparent on the face of record. The petitioners have not pointed out what specific material has been ignored and not considered. The petitioners themselves now in review petition have projected the case that question of abatement was not argued when the revision petition was heard. 11. In ‘Works Manager Central Railway’, the claim of wages of several persons including one T.A. Kolalkar under the Payment of Wages Act was refused by learned Magistrate. The learned Additional District Judge disagreed with the view taken by learned Magistrate. The High Court affirmed the order of the learned Additional District Judge. Before the Supreme Court the contention 6 was raised that T.A. Kolalkar had died after the order of the High Court and his legal representatives had not been brought on record, the appeal against him is incompetent and since there was a joint application on behalf of all the respondents which was dealt with and decided by a common order by the learned Magistrate, the appeal against the other respondents must also be held to be incompetent. The Supreme Court rejected the contention. T.A. Kolalkar and other respondents had independent rights which were decided in one petition. In the present case, the rights of plaintiffs were not akin to the rights of T.A. Kolalkar. The plaintiffs had invited the decision in the suit regarding the Wills of Smt. Bhajyali and their rights in the property. Hence, ‘Works Manager Central Railway’ (supra) is not applicable in the facts and circumstances of the case. 12. In ‘Rahimulla’ (supra) the suit was for permanent prohibitory injunction. Rahimulla and Karim Bux claimed private rights of easement over the land. It was held by the High Court that Rahimulla had independent right of maintaining a suit against Smt. Sakina and that right survived to him after the death of Karim Bux. In the case in hand as noticed above, it is not simply a case for permanent prohibitory injunction but the suit by implication involves declaration also which has been given in favour of both the plaintiffs and now one of the them has died and his legal representatives have not been brought on record. The substance of the suit is to be considered and not its nomenclature. Hence, Rahimulla is not applicable. 7 13. In ‘Shiv Ram and Others’ since some persons were already on record having same interest which could have been represented by heirs of deceased Zalam Singh and Shiv Ram, who were not brought on record, who were joint owners, each one of them could represent the estate jointly owned by the members of the branch to which he belonged. It was a case of joint ownership as against co-ownership. It was held that appeal would not abate. The facts in the present case are entirely different. The plaintiffs had projected the case of co-sharers and not joint owners. Hence, Shiv Ram (supra) is not applicable. 14. Katari Suryanarayana & Ors. V. Koppisetti Subba Rao & Ors. has been relied in the judgment dated 23.11.2010 on the negligence of petitioners in not bringing on record legal representatives of Basant Singh in time and condoning the delay. It has not been elaborated on the point of negligence how ‘Katari Suryanarayana (supra) is not applicable. 15. In view of above discussion, there is no error apparent on the face of record, the petitioners have failed to make out a case for reviewing the judgment dated 23.11.2010 on any ground. There is no merit in the petition which is dismissed. May 9, 2011 (Kuldip Singh), ( krt) Judge.