RSA No.3974 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3974 of 2008 (O&M) Date of Decision: 14.5.2010 Raj Kumar and others ..Appellants. Vs. Rohtash and others ..Respondents. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Sanjay Vashisth, Advocate for the appellants. Mr.A.K.Goel, Advocate for respondents No.1 and 3 to 6. RAKESH KUMAR JAIN, J. The appellants are the legal representatives of plaintiff Sheo Raj Singh, who have filed the present appeal challenging the judgment and decree of learned District Judge, Bhiwani dated 6.2.2008 by which the judgment and decree of learned Civil Judge (Sr.Divn.) Bhiwani dated 23.11.2004 in favour of the plaintiff has been reversed. The pleaded case of the plaintiff Sheo Raj Singh is that he was owner in possession of land falling in Khewat No.16/16 Min Khatoni No.38/1, Khasra Nos.272//19(8-0) 20/1(1-6) total measuring 9 kanals 6 marlas as per jamabandi for the year 1977-78 but the entry in the column of cultivation appearing in the name of Ved Parkash s/o Jagan as Gair Marusi is illegal, null and void and is liable to be corrected and further the RSA No.3974 of 2008 (O&M) -2- defendants be restrained from interfering in their peaceful possession over the property in dispute. It is alleged that land falling in Khasra No.272/19, 20, 21, 22, 282/1,2, 10/1 and 283/4/2 and 5 total measuring 64 kanals 13 marlas was jointly owned by him and his brothers which was cultivated by Ved Parkash son of Jagan (predecessor-in-interest of the defendants) as a Gair Marusi tenant. After the death of Ved Parkash his tenancy rights devolved upon his widow Indrawati and Rohtash. The plaintiff filed a petition in the year 1982 in the Court of Assistant Collector Ist Grade (ACIG) Bhiwani for their ejectment whereas the defendants much less the successor-in-interest of Ved Parkash filed an application before the same Authority claiming occupancy rights. In those proceedings, Inder Singh used to appear on behalf of Indrawati as her General Attorney who entered into a compromise with the plaintiff after receiving a sum of Rs.5000/- on behalf of Indrawati and handed over the possession of land in question to them. After the compromise, Inder Singh withdrew the petition for occupancy rights and the plaintiff withdrew the petition for ejectment. Later on, in a family settlement, which took place in the family of the plaintiff, he got the land in question. A mutation was also sanctioned in his favour. It is alleged that concerned patwari assured at that time that entries in the khasra girdawari would also be corrected but it continued in the name of deceased Ved Parkash which led to the filing of the present suit. The suit was contested by defendants No.1 and 2, who filed a joint written statement whereas defendants No.3 to 7, who happened to be the daughters of Ved Parkash adopted written statement of defendants No.1 and 2. It was alleged that they are still in possession of the land in dispute RSA No.3974 of 2008 (O&M) -3- against the payment of nominal rent. The alleged compromise was never acted upon and possession was not delivered to the plaintiff. Defendants No.2 to 7 were minors at that time and no guardian was appointed in those proceedings to defend them in terms of Order 32 Rule 3 of the Code of Civil Procedure, 1908 (for short `CPC'). On the pleadings of the parties, the following issues were framed by the trial Court: 1) Whether the plaintiff is owner in possession in Khewat No.16/16 Min Khatoni No.38/1, Killa Nos.272//19(8-0) 20/1 (1-6) as alleged, in the head note of the plaint? OPP. 2) If issue No.1 is proved, whether the plaintiff is entitled to get the revenue record corrected in his favour? OPP. 3) Whether the plaintiff is estopped to file the present suit by his own act and conduct? OPD. 4) Whether the suit is barred by limitation? OPD. 5) Whether the suit is not maintainable in the present form? OPD. 6) Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD. 7) Relief. Both the parties led their respective evidence. The learned trial Court decreed the suit. Aggrieved defendants filed first appeal under Section 96 of CPC which is allowed by the first Appellate Court and judgment and decree of the trial Court has been reversed. The learned trial Court on the basis of the evidence on record concluded that power of attorney (Ex.P10) has been duly executed by Indrawati. It is also held that on the basis of said power of attorney Inder Singh entered into a compromise by moving application (Ex.P1) seeking permission of the Court to compromise the matter on behalf of the minors RSA No.3974 of 2008 (O&M) -4- on the basis of certificate Ex.P4 issued by Sh.Satyavir Chaudhary Advocate who was the counsel for the defendant in the ejectment application wherein it was stated by him that compromise is for the welfare of the minors. It was further held that Indrawati had appeared in the proceedings before AC Ist Grade, Bhiwani, therefore, it is presumed that she herself had appointed Inder Singh as her general power of attorney to conduct proceedings, accordingly Inder Singh had compromised the matter on her behalf. On the contrary, learned first Appellate Court came to a conclusion that General Attorney (Ex.P10) was executed by Indrawati in favour of Inder Singh but it was held that certified copy of the GPA as secondary evidence can not be taken into evidence without the prior permission of the Court which admittedly has not been obtained by the plaintiff. Therefore, it was held that the said General Attorney (Ex.P10) is not admissible in evidence. However, the learned first Appellate Court, presumed the due execution and admissibility of document Ex.P10 but it was held that the said document never gave an authority to Inder Singh to deal with the tenancy rights of Indrawati or her minor son Rohtash as document Ex.P10 only talks of the immovable or movable property owned by Indrawati and not her tenancy rights. It was further held that on the basis of General Attorney (Ex.P10) Inder Singh was not an authority to act as Guardian or next friend of the minor nor PW3 Sh.Satyavir Chaudhary, Advocate was appointed as Guardian by the Court. It was held that if Indrawati entered into agreement then it could have been a different matter but the General Attorney Inder Singh who was not authorised by Indrawati nor appointed by the Court in terms of Order 32 Rule 3 CPC could not have RSA No.3974 of 2008 (O&M) -5- entered into compromise which was detrimental to the interest of the minor. In nutshell, the first Appellate Court, returned a finding of fact with regard to the appreciation of document (Ex.P10) and also with regard to the rights of the minor qua whose interest a stranger had made a statement in the Court. In the memo of appeal, learned counsel for the appellants has raised the following questions of law: (i)Whether the impugned judgment passed by the learned lower Appellate Court is sustainable? (ii)Whether the General Power of Attorney Ex.P10 was duly proved document and the same stood unrebutted? (iii)Whether the respondents-defendants still have no right in the property in the absence of any declaration especially after surrendering their possession after acceptance of compensation thereto through their General Power of Attorney? (iv)Whether the appellants-plaintiffs are entitled to get revenue entries corrected in the column of cultivation when they are admittedly owner of the suit property? However, at the time of arguments, the only question of law pressed is that if the General Attorney is proved on the basis of which the attorney holder has acted upon in the interest of minor on the basis of certificate issued by the Advocate that his interest is not adverse to the minors's interest then whether the Appellate Court has rightly reversed the judgment and decree of the trial Court. On the other hand, counsel for the respondents has submitted that firstly, General Attorney (Ex.P10) does not talk of power having been bestowed upon Inder Singh to intermeddle with the tenancy rights of RSA No.3974 of 2008 (O&M) -6- Indrawati and Rohtash (who was minor at that time) and secondly, in case of a minor, on whose behalf the compromise has been effected, the plaintiff has not followed the mandatory provisions of Order 32 Rules 3 and 7 of CPC. I have heard both the learned counsel for the parties and have perused the record. The first question involved which requires determination is the re-appreciation of power of attorney which is alleged to have been misread by the Appellate Court. Although in second appeal, the High Court is not obliged to re-appreciate the facts but when the entire edifice has been built by the plaintiff on the basis of the General Attorney (Ex.P10), I think it requires to be at least read to find out as to whether Indrawati had given her power to Inder Singh to deal with her tenancy rights as well. On a perusal of document (Ex.P10), I have found that Indrawati had only given her rights to Inder Singh to deal with her immovable or movable property standing in her name and nothing beyond that. She even did not give any right to Inder Singh to deal with the tenancy rights much less the rights of her minor son in the tenanted premises. Thus, in my view the document has been rightly appreciated by the first Appellate Court. Inder Singh had no competence to enter into a compromise with the plaintiff on the strength of General Attorney (Ex.P10). Thus, once the very basis of the exercise of power goes, the order of AC Ist Grade on which the plaintiff is relying upon, becomes redundant. In any case, insofar as the second question is concerned, as to what are the rights of the minor/defendant in a suit, in this regard, Order 32 Rules 3 and 7 are required to be noticed, which is reproduced as under: RSA No.3974 of 2008 (O&M) -7- Order 32 Rule 3 CPC “Guardian for the suit to be appointed by Court for minor defendant- (1) Where the defendant is a minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor. (2)An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff. (3)Such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed. (4)No order shall be made on any application under this rule except upon notice [***] to any guardian of the minor appointed or declared by an authority competent in that behalf or, where there is no such guardian, [upon notice to the father, or where there is no father, to the mother, or where there is no father or mother, to other natural guardian] of the minor, or where there is [no father, mother, or other natural guardian], to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule. [(4-A) The Court may, in any case, if it thinks fit, issue notice under sub-rule (4) to the minor also.] [(5) A person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any Appellate or Revisional Court and any proceedings in the execution of a decree.]” Amendment: [Punjab and Haryana] – (i) The following sub-rules were substituted for sub-rules (3) and (4) :- RSA No.3974 of 2008 (O&M) -8- “(3) The plaintiff shall file, with his plaint a list of relatives of the minor and other persons with their addresses, who prima facie are most likely to be capable of acting as guardian for the suit for a minor defendant. The list shall constitute an application by the plaintiff under sub-rule (2) above. (4)The Court may, at any time after institution of the suit, call upon the plaintiff to furnish such a list, and, in default of compliance, may reject the plaint.” (ii) Add the following as sub-rules (6) and (7):- “(6) Any application for the appointment of a guardian for the suit and any list furnished under this rule shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor, and that each person proposed is a fit person to be so appointed. (7)No order shall be made on any application under this rule, except upon notice to any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian, upon notice to the father or other natural guardian, of the minor or, where there is no father or other natural guardian, to the person in whose care the minor is and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule: Provided that the Court may, if it sees fit, issue notice to the minor also. Order 32 Rule 7 CPC Agreement or compromise by next friend or guardian for the suit - (1)No next friend or guardian for the suit shall, without the leave of the Court, expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian. RSA No.3974 of 2008 (O&M) -9- (1-A) An application for leave under sub-rule (1) shall be accompanied by an affidavit of the next friend or the guardian for the suit, as the case may be, and also, if the minor is represented by a pleader, by the certificate of the pleader, to the effect that the agreement or compromise proposed is, in his opinion, for the benefit of the minor: Provided that the opinion so expressed, whether in the affidavit or in the certificate shall not preclude the Court from examining whether the agreement or compromise proposed is for the benefit of the minor.] (2) Any such agreement or compromise entered into without the leave of the Court so recorded shall be voidable against all parties other than the minor.” A bare reading of Order 32 Rule 3 CPC provides that in case where the defendant is a minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be his guardian. The said order can be obtained by the other defendants or the minor himself or by the plaintiff. The application is required to be supported by an affidavit in which it is to be verified that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor but no such order shall be made except upon notice to the father or mother of the minor and where both of them are not available then to the natural guardian or where all of them are not available then to the minor himself. The Punjab and Haryana High Court has substituted sub-rules 3 and 4 to the effect that the plaintiff shall file, with his plaint a list of relatives with the addresses, who prima-facie are most likely to be capable of acting as guardian for the minor in the suit. In the case of a compromise by the next friend or guardian of RSA No.3974 of 2008 (O&M) -10- the minor, leave of the Court is required to be obtained. While applying for leave of the Court, it shall be accompanied by an affidavit of the next friend or guardian for the suit, as the case may be and also, if the minor is represented by a pleader, by the certificate of the pleader to the effect that agreement or compromise proposed is, in his opinion, for the benefit of the minor. In the present case, the plaintiff while filing ejectment petition before the Revenue Authority, knew that defendant No.2 is a minor as he has admitted this fact, when he had appeared as PW1, in his cross- examination where he had stated that “It is correct that at that time, defendants No.2 to 7 were minors.” He was referring to the time when the proceedings were pending before the Revenue Court. However, neither list of relatives of the minors in terms of Order 32 Rule 3 CPC was filed nor permission in terms of Order 32 Rule 3 CPC was obtained, which is mandatory in nature. Moreover, compromise has been effected in terms of Order 32 Rule 7 CPC as alleged but here also provision of Order 32 Rule 7 (1-A) has not been followed as it provides that an application for leave under sub-rule (1) shall be accompanied by an affidavit of the next friend or the guardian for the suit, as the case may be, and also, if the minor is represented by a pleader, by the certificate of the pleader, to the effect that the agreement or compromise proposed is, in his opinion, for the benefit of the minor. In this case only, a certificate Ex.P4 has been obtained from Sh.Satyavir Chaudhary, Advocate who appeared on behalf of the minor as well but the certificate is in addition to the affidavit of the next friend or the guardian of the minor is conspicuous by its absence in the present RSA No.3974 of 2008 (O&M) -11- proceedings. Admittedly, Inder Singh was neither next friend nor guardian of minor Rohtash. Thus, in my view, the proceedings carried out by the Revenue Court at the instance of Inder Singh against the interest of the minor were patently illegal being in violation of Order 32 Rules 3 and 7 of CPC. In view of the above discussion, I do not find any merit in the present appeal nor any substantial question of law is found to have been involved in this appeal. Hence, the same is hereby dismissed but without any order as to costs. (Rakesh Kumar Jain) 14.5.2010 Judge Meenu