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Punjab State Vs. Kabul Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Misc. No. 2295-C of 1966 (In F.A. No. 280 of 1965)
Judge
Reported inAIR1968P& H340
ActsCode of Civil Procedure (CPC) , 1908 - Order 22, Rule 4; Limitation Act, 1963 - Schedule - Article 120
AppellantPunjab State
RespondentKabul Singh and ors.
Appellant Advocate Gopal Singh, Adv. General (Punjab) and; B.S. Wasu, Adv.
Respondent Advocate D.C. Gupta, Adv.
DispositionAppeal dismissed
Cases ReferredState of Punjab v. Nathu Ram
Excerpt:
.....[as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - (a) when the success of the appeal may lead to the courts coming to a decision which will be in conflict with the decision between the appellant and the deceased respondent and therefore..........rs. 4,282.50.it was held by the additional district judge,hoshiarpur that the land acquired by the stategovernment adjoined the jullundur hoshiarpurroad and taking the evidence adduced by theparties into consideration, be awarded compensation at the rate of rs. 70/- per maria.from the award of the additional districtjudge, hoshiarpur, given on 18th january,1965, the state government filed a regularfirst appeal no. 280 of 1965,on 12thjuly, 1965 impleading kabul singh, karam singh and partapa as respondents. it is not disputed now that kabul singh was actually dead at the time of the presentation of the appeal, the death having taken place on 21st of march, 1965. according to the affidavit filed ob behalf of the state, the information about the death of kabul singh came to its knowledge.....
Judgment:

Shamsher Bahadur, J.

1. A parcel ofland measuring 2 Kanals and I Maria owned byKabul Singh his brother Karam Singh andPartapa of village Khawaspur, was acquired bythe Mate Government of Punjab, for IndustrialDevelopment Colony. The owners were awarded compensation of Rs. 2,868/-, includingcompulsory acquisition charges, and this wasenhanced on reference under Section 18 of the LandAcquisition Act by the Additional District Judge,Hoshiarpur, to an aggregate sum of Rs. 4,282.50.It was held by the Additional District Judge,Hoshiarpur that the land acquired by the StateGovernment adjoined the Jullundur Hoshiarpurroad and taking the evidence adduced by theparties into consideration, be awarded compensation at the rate of Rs. 70/- per Maria.From the award of the Additional DistrictJudge, Hoshiarpur, given on 18th January,1965, the State Government filed a RegularFirst Appeal No. 280 of 1965,on 12thJuly, 1965 impleading Kabul Singh, Karam Singh and Partapa as respondents. It is not disputed now that Kabul Singh was actually dead at the time of the presentation of the appeal, the death having taken place on 21st of March, 1965. According to the affidavit filed OB behalf of the State, the information about the death of Kabul Singh came to its knowledge for the first time on 3rd of September, 1966, when the Deputy Registrar of the Punjab High Court communicated that the summons issued by this Court in the appeal filed by the State Government had come back undelivered. In fact, the information was communicated to the office of the Advocate-General on 2nd August, 1966, and he sent a letter to the State Government on 2nd of September, 1966. The application to bring the legal representatives of Kabul Singh on record under Rule 4 of Order 22 of the Code of Civil Procedure was made as late as 6th October, 1966, and it was prayed that Nasib Kaur widow of Kabul Singh and Satnam Singh, his son, may be impleaded as respondents. A prayer was also made in this application that the delay in filing the appeal may be condoned

2. In this application which came for hearing before Pandit J., on 5th of May, 1967, the following order was passed:--

'If this application is not allowed, the result may be that the Regular First Appeal itself will be dismissed as having abated. Let it, therefore, be placed before a Division Bench for disposal'

3. It is manifest that Kabul Singh having died on 21st March, 1965, the regular first appeal preferred by the State on 12th July, 1965, suffered from an inherent defect as proper parties had not been impleaded. The application to bring the legal representatives of a deceased person on record has to be made within 90 days after his death. It has not been shown that sufficient diligence had been exercised by the appellant to ascertain whether proper parties had been impleaded in the appeal. Moreover, the death of Kabul Singh had coma to the knowledge of the Government on 2nd of August, 1966. It has not been explained why the application to bring the legal representatives of Kabul Singh on record was made as late as 6th of October, 1966. The contention of the learned Advocate-General that the period of 90 days should be computed after the Government had come to know of the death of Kabul Singh is not supported by any statutory provision. In our opinion, therefore, the appeal, so far as Kabul Singh is concerned, has abated.

4. The question still remains whether the Regular First Appeal No. 280 of 1965 abates partially or in toto. From the order of the Additional District Judge, it appears that the acquired land was owned jointly by Kabul Singh, his brother Karam Singh and Partapa. It was stated at the Rar that Partapa is also now dead. All the three claimants were awarded compensation at the uniform rate and indeed the aggregate sum of Rs. 4.282.50 has been awarded jointly to the claimants. If the appeal is allowed to continue against the claimants other than Kabul Singh, it would mean that different suras may be awarded for the same land to different persons. It was held by their Lordships of the Supreme Court in State of Punjab v. Nathu Ram, (1962) 2 SCR 636 = (AIR 1962 SC 89), that,

'the consideration which will weigh with Court in deciding upon the question whether the entire appeal had abated or not will be whether the appeal between the appellants and the respondents other than the deceased respondent can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the Court and the tests to determine this have been described thus: (a) when the success of the appeal may lead to the Courts coming to a decision which will be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the Court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject matter between the appellant and the deceased respondent.......'

The subject-matter, for which compensation is to be calculated in this case as in Nathu Ram's case, (1962) 2 SCR 636 = (AIR 1962 SC 89), before the Supreme Court, is one and the same and as observed by Raghubar Dayal J. in that case, 'there cannot be different assessments of the amounts of compensation for the same parcel of land. To get rid of the joint decree it was essential for the appellant, the State of Punjab, to implead all the joint decree-holders in the appeal. In the absence of one joint decree-holder, the appeal is not properly framed'.

5. On the principle laid down by the Supreme Court, the State appeal cannot be allowed to proceed without the legal representatives of Kabul Singh and has, therefore, to be dismissed. In the circumstances, we would, however, make no order as to costs.

P.C. Pandit, J.

6. I agree.


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