IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 257 of 2002. Date of decision: 13.9.2011. Parma Nand & ors. ….. Appellants. Vs. State of H.P. …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. K.D.Sood, Advocate. For the Respondent : Mr. J.S.Rana, Asstt. Advocate General. Kuldip Singh, Judge (Oral). This appeal has been directed against the judgement, decree, dated 25.3.2002 passed by the learned District Judge, Hamirpur, in CMAs. (Civil Appeal No. 143/86) No. 142 and 143 of 2001, dismissing the applications and ordering abatement of the appeal. 2. The facts in brief are that Parma Nand, Sito Devi, Smt. Tihri and Chaudhary filed a suit for declaration and permanent prohibitory injunction against the State of Himachal Pradesh regarding land, comprised in khasra No. 1845/1 measuring 4 kanals, khasra No. 1846/2 measuring 14 kanals 5 marls, Tika Mansai, Tehsil and District Hamirpur. They projected the case that they are in possession of the suit land according to their shares prior to Whether the reporters of the local papers may be allowed to see the Judgment? …2… 26.1.1950. They had private partition and they are paying land revenue according to their shares to the government. They have also raised construction over the suit land prior to 26.1.1950. The land could not vest in the Gram Panchayat as per provisions of Punjab Village Common Lands (Regulation ) Act, 1961. The land was never put to use for common purpose by the village community. On coming into force of H.P. Village Common Lands (Vesting and Utilisation) Act, 1974, the suit land has not vested in the State. The revenue officer without complying with the provisions of law, sanctioned the mutation in the name of Gram Panchayat and later on in the name of State of Himachal Pradesh, which is against the provisions of law. The plaintiffs continued in possession over the suit land. The plaintiffs had preferred objections before the Collector, but those objections remained undecided. The State has no right or interest in the suit land, but is threatening to interference in the possession of the plaintiffs. The plaintiff filed the suit after serving notice, under Section 80 CPC. 3. The suit was contested by the State. The objections of maintainability, validity of notice under Section 80 CPC, jurisdiction, cause of action, limitation etc. were taken. It has been stated that khasra No. 1845/1 measuring 4 kanals is recorded as “Shamlat Tika”. The khasra No. 1846/2 measuring 14 kanals 5 marlas has been correctly shown in the ownership and possession of the State. The suit land was “Shamlat” and was recorded in the joint possession of the proprietors of the village prior to 26.1.1950 and even thereafter …3… the suit land vested in the Panchayat and then in the State of H.P, who is owner in possession of the suit land. 4. On the pleadings of the parties, the following issues were framed:- 1. Whether the land in suit has never been vested in Gram Panchayat & then in Govt. as alleged? OPP. 2. Whether the plaintiffs are entitled to the relief of injunction as prayed for? OPP. 3. Whether the suit is not maintainable in the present form? OPD. 4. Whether no legal and valid notice under section 80 C.P.C. was served upon the defendant? OPD. 5. Whether the suit is not properly valued for the purposes of court fee & jurisdiction? OPD. 6. Whether the plaintiffs are estopped to file the present suit by their acts & conduct? OPD. 7. Whether this court has got no jurisdiction to try the present suit? OPD. 8. Whether the suit is barred by limitation? OPD. 9. Whether the plaint is not properly verified in accordance with law? OPD. 10.Relief. The issues No. 1 to 9 were answered in negative and the suit was dismissed on 24.3.1986. The appeal was filed before the learned District Judge, which was allowed on 15.2.1992. The matter was carried in the High Court by way of RSA No. 323 of 1992, in which, it transpired that Smt. Tihri died on 13.4.1991 and Chaudhary died on 29.10.1989 and both of them were appellants in the first appellate court and they died during the pendency of appeal before the first appellate court. In these circumstances, RSA No. 323 …4… of 1992, was allowed on 26.4.2001, judgement, decree dated 15.2.1992 were set-aside. The case was remanded back to learned District Judge for disposal afresh after deciding the question of bringing on record the legal representatives of deceased Tihri and Chaudhary and/ or abatement of appeal. 5. After remand, one application, being CMA No. 143 of 2001, was filed by Kaushalya Devi daughter of Smt. Tihri for bringing her on record in appeal after the death of Tihri. Ronki Devi, Prem Chand, Ramesh Chand, Sunil Kumar widow and sons of Chaudhary Ram filed CMA No. 142 of 2001 for bringing them on record after the death of Chaudhary Ram. Both the applications were filed, under Order 1 Rule 10 read with Section 151 CPC. These applications were contested. The learned District Judge, vide judgement dated 25.3.2002, dismissed both the applications and held that appeal has abated. Hence, second appeal, which has been admitted on the following substantial questions of law:- 1. Whether on the materials on record and in the facts and circumstances of the case, a case was made out for substituting/ impleading the legal representatives of Smt. Tihri and Chaudhary and the application under Order 1 Rule 10 read with Section 151 CPC could have been rejected as not maintainable? 2. Whether when the ingredients for impleading the legal representatives of Smt. Tihri and Chaudhary had been pleaded and a case made out for condonation of delay? Mere nomenclature of the application under Order 1 Rule 10 CPC instead of Order 22 Rules 4 & 11, debarred the Court below …5… from granting relief to substantiate justice between the parties? 3. Whether in the facts and circumstances of the case a case for condonation of delay in bringing on record/ substituting the legal representatives of Tihri and Chaudhary was made out and the Court below has not exercised judicial discretion in rejecting the application, which has vitiated the findings and resulted in failure of justice, particularly in view of the orders passed in RSA No. 323 of 1992 and CMP(M) Nos. 62, 63, 64 and 65 of 1993, dated 26.4.2001? 4. Whether the finding of the court below that the entire appeal has abated is sustainable in law and justified in the facts and circumstances of the case? 6. I have heard Mr. K.D.Sood, learned counsel for the appellants and Mr. J.S.Rana, learned Assistant Advocate General appearing on behalf of respondent No.1 and have also gone through the record. Mr. Sood, learned counsel has submitted that applications were filed by the legal representatives of the deceased appellants in the lower appellate court, under Order 1 Rule 10 read with Section 151 CPC, but in substance the applications were for bringing on record the legal representatives of the deceased appellants. Therefore, wrong mentioning of provision will not make any difference in so far as merits of the applications are concerned. He has submitted that learned lower appellate court has taken very technical view in rejecting the applications filed for bringing on record the legal representative of deceased appellants. …6… 7. On behalf of the State, it has been submitted that applications under Order 1 Rule 10 read with Section 151 CPC are not maintainable in view of specific provision provided, under Order 22 Rule 3 CPC, for bringing on record the legal representatives of deceased appellants. In addition, it has been submitted that it is not a case where sole appellant had died and his legal representatives have filed application for substitution. In the applications, no prayer has been made for setting –aside the abatement, nor the delay in filing the applications has been properly explained. The applications have been got filed by the surviving appellants through the legal representatives of deceased appellants. The deaths of two appellants took place on 29.10.1989 and 13.4.1991 and the applications were filed in the court on or about 28.5.2001 The High Court decided RSA No. 323 of 1992 on 26.4.2001. 8. The substantial questions of law No. 1 to 4 are interconnected, therefore, all of them are taken up collectively for determination. There is no denial of the fact that Chaudhary Ram died on 29.10.1989 and Smt. Tihri died on 13.4.1991, when the matter was pending in the lower appellate court. This has been noticed in the judgement, dated 26.4.2001 in RSA No. 323 of 1992. The applications, under Order 1 Rule 10 read with Section 151 CPC, were filed by the legal representatives of Tihri and Chaudhary Ram on 28.5.2001. The surviving appellants did not file applications for bringing on record the legal representatives of Tihri and Chaudhary Ram. In both the applications, identical averments have been made. In the applications, it has been stated that applicants have come to …7… know about the appeal at this stage and they are necessary parties and without impleading them, no effective decree can be passed. 9. It has been stated in the applications that applicants were not aware of the proceedings previously and they have come to know recently from Perma Nand appellant and they are moving the applications without any delay. The applications are vague. The applicants have stated that there is no question of limitation as they themselves are moving the applications for impleading them as parties. There is no averment for condonation of delay in filing the applications. 10. This court, vide judgement dated 26.4.2001, had directed the District Judge to bring on record the legal representatives of deceased Tihri and Chaudhary Ram and to decide the question of abatement of the appeal. The applicants instead filed applications for impleading them as necessary parties, no application was filed before the learned District Judge for bringing on record the legal representatives of deceased appellants after setting aside the abatement of the appeal and for condonation of delay in filing such applications. The abatement of appeal is automatic and it requires no order. 11. In presence of specific provision for bringing on record the legal representatives of deceased appellants, no application for impleading some persons as necessary parties, even if they are the legal representatives of deceased appellants, is maintainable, unless the abatement is set-aside and legal representatives of deceased persons are brought on record. It is not the case of applicants that …8… they have independent right of impleadment in the appeal not as legal representatives of deceased appellants but in their own right. In Morasa Anjaiah vs. Kondragunte Venkateswarlu (died) and others AIR 1993 AP 156 (DB), it has been held that where no steps are taken to bring the legal representatives on record under Rule 3 or 4 of Order 22 and the suit/ appeal has abated and/ or where the attempt to have the order of abatement set-aside and bring the legal representatives of the deceased party on record failed, the defaulting party has to take the consequences mentioned in Rule 9 of Order 22 and he cannot be allowed to have recourse to the general provisions of Order 1 Rule 10, CPC for impleading the legal representatives of the deceased party by circumventing the provisions of the said Order 22. 12. In view of legal position discussed above, the District Judge has rightly considered the applications and no fault can be found, when he dismissed the applications being CMAs. (Civil Appeal No. 143/86) No. 142 and 143 of 2001. The learned District Judge has complied the directions given in judgement dated 26.4.2001 passed in RSA No. 323 of 1992. There is no merit in the appeal. The substantial questions of law No. 1 to 4 are decided against the appellants. Thus the appeal fails and is accordingly dismissed with no order as to costs. September 13, 2011. ( Kuldip Singh ), (Hem) Judge.