Chhabil
Das Vs. Pappu [2006] Insc 718 (31 October 2006)
S.B.
Sinha & Markandey Katju
(Arising
out of S.L.P. (C) No.7263 of 2005) S.B. Sinha, J.
Leave
granted.
Appellant
herein was a defendant in a suit filed by Respondent No.1 herein for permanent
injunction restraining him from interfering with possession and cultivation of
the suit land which was said to be in possession of the plaintiff as a 'gair marusi
tenant'. She, allegedly, inherited the said property from her husband Sagar,
who died in June, 1988. The appellant in his written statement, inter alia,
denied and disputed the said contention and averred that the defendant was in
possession of the land in question on the death of Sagar and they had planted
about 200 trees on the suit land.
The
defendant also filed a counter claim. The suit as well as the counter claim
filed by the appellant was dismissed. An appeal preferred by the appellant in
the Court of District Judge was also dismissed. The Second Appeal preferred by
him was also dismissed.
The question
raised before the High Court as also before us, relates to legality and/ or
validity of the order of adoption of Pappu by Jarwali. It was pointed out that
the adoption allegedly took place on 28.11.1983 whereas Sagar died in the year
1988, in the plaint, the Plaintiff-Respondent categorically stated that Sagar
died issueless and a registered Adoption Deed regarding the purported adoption
on 28.11.1983 was executed on 28.10.1990, which demonstrates that the purported
adoption was not valid in law.
Submission
of Mr. R.K. Kapoor, learned Counsel appearing on behalf of the appellant was
that having regard to the fact that the widow had no right to adopt Pappu, the
suit could not have been decreed.
It is
not in dispute that Jarwali died on 17th December, 1994. Pappu filed an application
representing her estate as a legal representative. By an order dated 4.8.1995,
the said application was allowed, stating :
"2.
On the other hand, the above application has been contested by the
defendant-respondent having filed reply vide which it is admitted that
plaintiff Smt. Jarawali has expired, but no document regarding her date of
death has been brought on record; that it is denied that applicant Pappu is the
only legal representative of said deceased Smt. Jarawali, so he is not entitled
to be impleaded as plaintiff in the suit and lastly, it is prayed that the
application in hand may kindly be dismissed with costs.
3. I
have heard the arguments advanced by learned counsel for the parties and
carefully gone through the record available on the file after giving my
thoughtful and anxious consideration.
4. A
bare perusal of the file reveals that no counter affidavit has been filed by
the defendant-respondent.
Moreover,
photostat copies of the registered adoption deed dated 3.12.1990 vide which
applicant Pappu was adopted by Smt. Jarawali widow and her death certificate
have been brought on record. Having a glance over these documents, I have no
hesitation to say that Smt. Jarawali has expired on 17.12.1994 at Mohalla Nalapur,
Narnaul and Pappu applicant is her only legal representative. So, he is
entitled to be impleaded as a plaintiff. With these observations, I apparently
do find a merit in the application in hand and the same stands allowed."
[Emphasis supplied] The said order having not been questioned, indisputably,
attained finality.
The
question of substitution of Jarwali by Pappu, therefore, was in issue in a
proceeding under Order XXII Rule 5 of the Code of Civil Procedure, 1908. Order
XXII Rule 5 reads thus :
"5.
Determination of question as to legal representative. When a question arises as
to whether any person is or is not the legal representative of a deceased
plaintiff or a deceased defendant, such question shall be determined by the
Court:
Provided
that where such question arises before an Appellate Court, that Court may,
before determining the question, direct any subordinate Court to try the
question and to return the records together with evidence, if any recorded at
such trial, its findings and reasons therefor, and the Appellate Court may take
the same into consideration in determining the question."
The
appellant, therefore, did not deny or dispute that the respondent herein could
represent the estate of Jarwali. When a question arose as to who is the legal
representative of a party to the suit who had expired, the same was required to
be determined in terms of Order XXII, Rule 5 of the Code of Civil Procedure.
However,
by reason thereof, the merit of the matter does not become final. The suit was
one for injunction. No issue was framed nor could be framed therein as to
whether the requirements of Sections 7 and 8 of the Hindu Adoption and
Maintenance Act, 1956 had been complied with or not.
It is
in that view of the matter, the learned Trial Judge opined that the status of
the respondent as an adopted son of Smt. Jarwali could not be looked into the
said case.
Submission
of Mr. Kapoor that adoption of the respondent is per se illegal, in our
opinion, has rightly been held by the learned Trial Judge to be irrelevant for
the purpose of determination of the issues in suit.
If the
respondent could represent the estate of original defendant and despite the
fact that the appellant had an opportunity to raise the said issue at the stage
of determination of the question as envisaged under Order XXII, Rule 5 of the
Code of Civil Procedure, the same having been done, such a question cannot be
permitted to be raised in the second appeal or before us for the first time.
It is
now well-known that the principle of res judicata also applies in different
stages of the same proceedings. {See Bhanu Kumar Jain vs. Archana Kumar & Anr.
[(2005) 1 SCC 787] and Ishwar Dutt vs. Land Acquisition Collector & Anr. [(2005)
7 SCC 190].} Once, thus, the respondent was substituted in place of Jarwali, in
our opinion, the question of reopening the said question by us does not arise.
For
the reasons aforementioned, there is no merit in this appeal which is dismissed
accordingly. No costs.
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