SUPREME COURT OF INDIA
Chhabil Das
Vs
Pappu
Appeal (Civil) 4611 of 2006 (Arising Out of S.L.P. (C) No.7263 of 2005)
(S. B. Sinha and Markandeya Katju, JJ)
31.10.2006
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. 2 and Ishwar Dutt vs. Land
Acquisition Collector & Anr. .}
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.