RSA No.2064 of 2007 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** RSA No.2064 of 2007 (O&M) DATE OF DECISION: 25.08.2010 **** Smt. Dhanpati and others . . . . Appellants VS. Banwari Lal . . . . Respondent **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.S.K. Rana, Advocate for the appellants (in RSA No.2064 of 2007) Mr.Ashish Aggarwal, Advocate for the appellants (in RSA No.2103 of 2007) Mr.Chetan Mittal, Sr. Advocate with Mr.Vishal Garg, Advocate for the respondent. **** RAKESH KUMAR JAIN J. (ORAL) This order shall dispose of two Regular Second Appeals bearing RSA No.2064 of 2007 titled as “Smt. Dhanpati and others VS. Banwari Lal” having been filed by the Legal Representatives of Sundra (defendant) and RSA No.2103 of 2007 titled as “Dharma and another Vs. Banwari Lal and others” filed by subsequent purchaser of the suit property. In both the aforesaid appeals, judgment and decree of the First Appellate Court has been challenged. In the Regular Second Appeal No.2064 of 2007, challenge is on merits whereas in Regular RSA No.2064 of 2007 (O&M) -2- Second Appeal No.2103 of 2007, challenge to the judgment and decree is on merits as well as on the ground of locus standi. The present appeal has arisen out of a suit for possession of agricultural land measuring 24 kanals 0 marlas by way of specific performance. The trial Court had partly decreed the suit and ordered for refund of the earnest money to the plaintiffs and the First Appellate Court had dismissed the suit on the ground of maintainability on 13.2.1982, on the basis of RSA No.490 of 1982 titled as Banwari Lal Vs. Shri Sundra filed before this Court, which was disposed of on 17.4.2007 while remanding the case to the First Appellate Court to decide the appeal afresh in accordance with law, positively within a period of one month from the date the parties put in appearance with a direction to the parties to appear before the trial Court on 14.5.2007. Incidentally, Sundra (sole defendant) died on 23.11.1992 when RSA No.490 of 1982 was pending before this Court but this fact could not be brought to the notice of this Court. However, after remand of the Case, an application was filed by the plaintiff/appellant to implead the Legal Representatives of deceased-Sundra. At the same time, an application under Order 1 Rule 10 of the Code of Civil Procedure, 1908 (for short ‘CPC’) was also filed at the instance of subsequent purchaser to be impleaded as parties but the same was disposed of by learned Additional District Judge on 24.5.2007 after passing following order : “An application for bringing the LRs of respondent Sundra deceased is filed which is supported by an affidavit. The application is perused. In view of the facts mentioned therein the application stands allowed hereby permitting to bring the LRs of deceased Sundra on record. Amended RSA No.2064 of 2007 (O&M) -3- title is filed. It is placed at appropriate place on the file. However, it is pointed out that after amendment of the CPC there is no need of giving notice to the LRs of deceased but it is the duty cast on the LRs to approach the court for bringing themselves on record in place of their predecessor-in-interest. However, despite directions given by the Hon’ble High Court, none of the LRs of Sundra deceased had approached this Court for joining. In view of the matter, there is no need of giving notice to the LRs of deceased Sundra who have been brought on record. However, short date is requested for arguments on the application under Order 1 Rule 10 CPC. Now the case is adjourned to 26.5.2007 for arguments on the application.” Further, the application filed by subsequent purchaser Dharma etc. under Order 1 Rule 10 CPC was dismissed on 29.5.2010 on the ground that they are not necessary parties as their case is covered under Section 52 of the Transfer of Property Act. In the absence of the Legal Representatives of sole defendant and also the subsequent purchaser, the appeal was ex parte heard and decided in favour of the plaintiff against whom the aforesaid two appeals have been filed. During the course of hearing, it transpired that the judgment and decree of the First Appellate Court may be set aside and matter could be remanded back to the First Appellate Court for deciding it RSA No.2064 of 2007 (O&M) -4- afresh after hearing both the parties, namely, plaintiff and the Legal Representatives of deceased-Sundra. At this stage, learned counsel for the respondent has submitted that in so far as subsequent purchaser is concerned they are not entitled to be heard. Mr.Ashish Aggarwal, counsel appearing on behalf of the subsequent purchaser has relied upon decisions of this Court in the case of “Suresh Kumar Versus Gurdev Singh and others” 2008(1) RCR (Civil) 748, “Jagrup Singh and others Versus Naib Tehsildar (Sales) Sirsa and others” 1985 PLJ 342 and “Bakhtawar Singh and others Versus Nirmal Singh and others” 1973 PLJ 154 to contend that after purchasing the suit property from the plaintiff, the rights have accrued to the subsequent purchaser to participate in the case because if the LRs of deceased (defendant) do not take the required interest in the appeal then his rights would be adversely prejudiced. However, Mr.S.K. Rana, counsel appearing on behalf of Legal Representatives of deceased-Sundra assures the Court that they will take full interest in the appeal and denied the apprehension of the subsequent purchaser in this regard. Learned counsel for the respondent has also submitted that the subsequent purchaser had already appeared in witness box in the suit. Therefore, he cannot now come and say that he may be allowed to represent himself as subsequent purchaser in the appeal. Be that as it may, subsequent purchaser and appellant are allowed to appear and argue before the First Appellate Court. In view of the above discussion, judgment and decree of the First Appellate Court is set aside and the matter is remanded back to the First Appellate Court for deciding it afresh. RSA No.2064 of 2007 (O&M) -5- The parties are directed to be present before the First Appellate Court through their counsels on 20.9.2010. Disposed of. (RAKESH KUMAR JAIN) 25.08.2010 JUDGE Vivek