Rattan Chand & Ors vs Mori (D) By L.R. & Ors

RATTAN CHAND & ORS. .......APPELLANT(S)

Versus

MORI (D) BY L.R. & ORS. .....RESPONDENT(S)

O R D E R

Defendants 1 to 3 in a suit for declaration

and possession filed by the deceased first respondent Mori

Devi are the appellants in these appeals by special leave.

2. One Ram Sahai had two wives, Mori Devi and

Nihatu. Mori Devi did not have any children. Nihatu had a

daughter by name Basanti who was married to Durga. Basanti

and Durga had four children, namely, the three appellants

herein (defendants 1 to 3) and one daughter Soma Devi, who

is the legal representative of deceased Mori Devi. Ram

Sahai was the occupancy tenant in respect of the suit land

and was entered accordingly in the revenue records. After

his death, Mori Devi and Nahuti who succeeded to his estate

in equal share were shown as the occupancy tenants.

.....2.

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However, abruptly the name of Durga was also entered in the

revenue records as a non-occupancy tenant. Nihatu died in

the year 1983, leaving a will bequeathing her half share in

favour of defendants 1 to 3. Durga also died. After the

death of Durga, the names of defendants 1 to 3 were entered

as the non-occupancy tenants in regard to the entire

property including the half share of Mori Devi.

3. When Mori Devi came to know that names of

Durga and subsequently names of defendants 1 to 3 were

entered as non-occupancy tenants even in regard to her

share of land, she filed a suit for declaration and

possession on 6.6.1985. The trial Court decreed the suit

on 16.12.1986 accepting the claim and case of Mori Devi.

However, the appeal filed by the defendants 1 to 3

(appellants herein) was allowed by the first appellate

Court by judgment and decree dated 11.4.1989 and the suit

was dismissed. Feeling aggrieved, Mori Devi filed a second

appeal (RSA No.204/1989) in the High Court of Himachal

Pradesh. During the pendency of the said appeal, she died

on 7.6.1994. However, no one came on record as her legal

representative. The High Court, unaware of the death of

Mori Devi, heard the second appeal and allowed it by

judgment dated 1.5.1997. Thereafter, defendants 1 to 3 made an

.......3.

- 3 -

application to the High Court pointing out that the

appellant Mori Devi had died in 1994 itself and there

cannot be a decree in favour of a dead person in the

absence of any L.R. having come on record. Accepting the

said submission, the High Court recalled the order dated

1.5.1997 and dismissed the appeal as having abated. Nearly

two years thereafter, in the year 1999, Soma Devi, daughter

of Durga, as legatee and successor of Mori Devi, under her

will, filed an application to come on record as the legal

heir of Mori Devi and restore the second appeal. Though

the said application was resisted, the High Court allowed

the said application by order dated 1.11.2001 and set aside

the abatement, condoned the delay and allowed Soma Devi to

come on record subject to payment of Rs.2,000/- as costs.

The costs were paid. Thereafter, the appeal was restored

to file and heard. The High Court again allowed the second

appeal by judgment dated 11.1.2002.

4. Feeling aggrieved, the appellants have filed

these appeals by special leave challenging the order dated

1.11.2001 permitting Soma Devi to come on record as the

legal representative of the deceased appellant Mori Devi

and the judgment dated 11.1.2002 allowing the second

appeal.

........4.

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5. The appellants contend that the abatement

ought not to have been set aside after an enormous delay.

But we find from the order dated 1.11.2001 that the

application was allowed subject to payment of Rs.2,000/-

as costs. The learned counsel appearing for the appellants

herein stated that 50% of the costs may be given to the

High Court Bar Association for purchase of books and the

remaining 50% be paid to the Advocates Welfare Fund of the

Bar Council, Himachal Pradesh. The costs were accordingly

paid and disbursed. In view of the fact that the counsel

for the appellants herein specifically agreed and suggested

the manner of payment of costs, he is deemed to have agreed

and accepted the order dated 1.11.2001 by receiving the

cost. Hence, it is not open to the appellants to

subsequently challenge the order dated 1.11.2001 which

permitted the legal representative of the deceased Mori

Devi to come on record in her place and pursue the restored

second appeal.

6. As far as merits of the appeals is concerned,

the High Court found that Ram Sahai was an occupancy tenant

and his name was entered as such in the record. When he died, it was not disputed that his two widows Mori Devi and

Nihatu became the occupancy tenants and, accordingly, their

names were entered in the revenue records. The High Court

....5.

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also found that without any reason the name of Durga, son-

in-law of Nihatu, was also entered abruptly as a non-

occupancy tenant. The High Court has examined the material

on record and has pointed out that this is case of

absolutely 'no evidence'. The High Court was conscious of

the fact that if there was any finding of fact based on

evidence by the first appellate Court, it should not

interfere with such finding. The High Court interfered

because it came to conclusion that there was no evidence or

reason at all as to why and how the name of Durga was

entered as an occupancy tenant. The High court also relied

uopn several decisions which held that where someone is

registered and shown as occupancy tenant, if someone else's

name is entered as non-occupancy tenant without any

explanation, the first entry should be preferred and not

the unexplained subsequent entry. It is in these

circumstances, the High Court has reversed the finding of

the first appellate Court and restored the finding of the

trial Court that Durga was not a non-occupancy tenant. The

High Court has also noticed that the defendants 1 to 3

being co-owners cannot at the same time claim to be non-

occupancy tenants also.

......6.

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7. Having regard to all these circumstances, we

find that there is no error in the judgment of the High

Court in allowing the second appeal. These appeals are,

therefore, dismissed.

.........................J. ( R.V. RAVEENDRAN )

New Delhi; .........................J. January 14, 2010. ( SURINDER SINGH NIJJAR )