RSA No. 3178 of 1984 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3178 of 1984 Date of Decision: 21.07.2010 Sarupa son of Bhagwanta resident of village Chhainsa, Tehsil Ballabgarh, District Gurgaon (Now Faridabad). ... Appellant Versus Ranga Singh son of Sher Singh, r/o village Chhainsa, Tehsil Ballabgarh, District Faridabad. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Gopi Chand, Advocate, for the appellant. Mr. K.S. Sidhu, Advocate, for the respondent. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgement and decree dated 22.11.78, rendered by the Court of Sub Judge, IInd Class, Ballabgarh, vide which, it dismissed the suit of the plaintiff, and, the judgement and decree dated 01.09.84, rendered by the Court of Additional District Judge (I), Faridabad, vide which, it dismissed the appeal. 2. The facts, in brief, are that, Ami Chand, who was the owner of the land, measuring 25 kanals 17 marlas, situated at village RSA No. 3178 of 1984 2 Chhainsa, Tehsil Ballabgarh, bequeathed the same, in favour of the plaintiff, vide registered gift deed dated 25.01.68, and, as such, mutation in respect thereof, was also sanctioned, in his favour. However, the defendant, illegally took possession of the land, in dispute. The defendant, was many a time asked not to do so, but, to no avail. Ultimately, a suit for possession was filed. 3. The defendant, put in appearance, and filed written statement, wherein, he took up various objections, and contested the suit. It was pleaded that, the plaintiff, had no locus-standi, to file the suit. It was further pleaded that, the suit, was barred by time. It was further pleaded that, no cause of action, accrued to the plaintiff, to file the suit. It was further pleaded that the suit was bad for mis-joinder and non-joinder of necessary parties. It was further pleaded that the suit was not properly valued for the purpose of court fee and jurisdiction. It was stated that, the defendant, had been in possession of the land, in dispute, for the last about 20 years, and, as such, became the owner thereof, by way of adverse possession. It was further stated that, the plaintiff, had never been in possession of the land, in dispute. It was further stated that, no gift deed, bequeathing the land, in dispute, was ever executed by Ami Chand, in favour of the plaintiff. It was further stated that, in fact, Chandro alias Chameli wife of Ram Phul, was the owner of the land, in dispute, from whom, the defendant, took the same. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues, were RSA No. 3178 of 1984 3 struck:- (i) Whether the plaintiff is owner of the property, in dispute, as alleged? OPP (ii) Whether in case issue No. 1 is proved, in what capacity and since when the defendant is in possession of the property, in dispute, and to what effect? O Parties (iii) Whether the suit is not within time? OPD (iv) Whether the plaintiff has no locus-standi to file the suit? OPD (v) Whether the plaintiff has no cause of action? OPD (vi) Whether the plaintiff is estopped by his act and conduct? OPD (vii) Whether the suit is bad on account of non-joinder and misjoinder of necessary parties? OPD (viii)Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD (ix) Relief. 5. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, dismissed the suit of the plaintiff. 6. Feeling aggrieved, an appeal, was preferred by the plaintiff (now appellant), which was also dismissed, by the Court of Additional District Judge (I), Faridabad, vide judgement and decree dated 14.05.84. 7. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the appellant. RSA No. 3178 of 1984 4 8. I have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully. 9. The perusal of the record shows, that a specific plea, was taken, by the plaintiff/appellant, that Ami Chand, executed a legal and valid registered gift deed dated 25.01.68, in his favour, and, on the basis thereof, he became the owner of the suit property. This fact, was denied, in the written statement, but, no issue, in that regard, was struck, by the trial Court, though, findings, with regard to the non- execution thereof, were recorded, by the Courts below. Not only this, further perusal of the record shows, that earlier too the gift deed dated 25.01.68, which was allegedly executed by Ami Chand, in favour of Sarupa, plaintiff/appellant, was the subject matter of a separate suit. In the file of the first Appellate Court, there is a judgement dated 14.10.83, which was rendered, in RSA No. 797 of 1977. The said appeal, was dismissed, holding that, the concurrent findings, recorded by the Courts below, that the gift deed, was not the result of fraud or misrepresentation, were correct, and, thus, the same, were affirmed. It is further evident that, that suit, was filed by Ami Chand, who died, and, Chandro, was impleaded, as his legal representative. This judgement perhaps escaped the notice of the first Appellate Court, nor any application, under Order 41 Rule 27 CPC, was filed, before the first Appellate Court, for admitting the said judgement into evidence. Even Chandro daughter of Ami Chand, in whose favour, the mutation, was sanctioned, was not impleaded, as a party. In my considered RSA No. 3178 of 1984 5 opinion, Chandro, was a necessary party, in whose absence, the controversy, could not be effectively adjudicated upon. It is not that, the plaintiff or the defendant, should necessarily move an application for impleading a necessary party, to the lis. The Courts, if find, that the presence of a party for the decision of a lis, is necessary, and any decision, rendered in his or her absence, would affect his or her civil right, then it can certainly implead him or her, as a party, for the complete and effective decision of the case, to ensure that, substantial justice, is not sacrificed, at the altar of hyper-technicalities. The Courts below, also did not do so. For the purpose of determining, as to whether, the judgement, in RSA No. 797 of 1977, rendered by this Court, operates as res-judicata, in so far as, the question of execution, legality and validity of the gift deed dated 25.01.68, is concerned, copies of the pleadings of the parties, in the previous suit, as also all the issues, struck therein, are required, to be produced and proved. Even after the impleadment of Chandro, as a party, to the suit, and, if she appears and files written statement, the evidence, is required, to be recorded denovo, in her presence. In this view of the matter, the case, deserves to be remanded back, to the trial Court, after accepting the appeal. 10. For the reasons recorded above, the appeal, is accepted. The judgements and decrees of the Courts below, are set aside. The case, is remanded back, to the trial Court, with a direction, to implead Chandro, as a party, and, after procuring her presence, and obtaining her written RSA No. 3178 of 1984 6 statement, if she appears, strike necessary issues, arising out of the pleadings of the parties, as also the issues, as to whether the judgement dated 14.10.83, rendered by this Court, in RSA No. 797 of 1977, operates as res-judicata, on the issue of execution, legality and validity of the gift deed dated 25.01.68, by Ami Chand, in favour of Sarupa. Thereafter, the trial Court, shall afford an opportunity, to the parties, to lead their evidence, and, after conclusion thereof, hear the arguments and decide the case afresh, within a period of six months, from 11.08.2010, as the suit relates to the year 1977. 11. The parties, are directed, to appear, in the trial Court, on 11.08.2010. 12. The Registry, is directed, to send the copies of the judgement alongwith the entire record of the Courts below to the quarters concerned, immediately, by all means of communication, permissible under law, so as to ensure, that the same reach there well before 11.08.2010, positively. 21.07.2010 (SHAM SUNDER) Amodh JUDGE