Ashok Kumar Tyagi & Ors v. Sanjay Tyagi & Ors

RAJIV SAHAI ENDLAW, J. SEPTEMBER 07, 2018 'gsr'

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 7th September, 2018 + RSA 290/2017 & CM No.45884/2017 (for stay) ASHOK KUMAR TYAGI & ORS ..... Appellants Through: Ms. Smita Maan, Adv. Versus SANJAY TYAGI & ORS ..... Respondents Through: Mr. D.V. Khatri, Adv. for R-1 to 3. Mr. Sourav Roy, Adv. for R-4. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated 18th July, 2017 in RCA/DJ/60874/2016 of the Court of Additional District Judge (ADJ)-05, West] of dismissal of First Appeal under Section 96 of the CPC preferred by the four appellants / plaintiffs and respondent no.4/plaintiff against the judgment and decree [dated 14th January, 2015 in Suit No.287/2012 of the Court of Civil Judge-III, West] of rejection under Order VII Rule 11(a) CPC of the plaint in the suit filed by the four appellants / plaintiffs and respondent no.4 / plaintiff against the respondents no.1 to 3 / defendants. 2. This appeal came up first before this Court on 18th December, 2017 when the counsel for the respondents no.1 to 3 / defendants appeared on advance notice and accepted notice and the suit court record was requisitioned. The respondent no.4 / plaintiff appeared in person before this Court on 20th March, 2018 and stated that he was unable to afford an advocate. Vide order dated 20th March, 2018, Mr. Sourav Roy, Advocate was requested to assist the respondent no.4 / plaintiff as an advocate and the appeal posted for today. 3. Today, Mr. Sourav Roy, Advocate for the respondent no.4 / plaintiff states that the respondent no.4 / plaintiff Pardeep Tyagi has instructed him to state that the respondent no.4 / plaintiff though had instituted the suit from which this appeal arises but had not wanted to prefer the first appeal and did not sign the memorandum of first appeal or the vakalatnama in favour of the advocate. 4. Needless to state that the counsel for the appellants / plaintiffs controverts. 5. However, need to adjudicate the aforesaid controversy is not felt inasmuch as irrespective of whether the respondent no.4 / plaintiff had preferred the first appeal or not, as per the statement made today of respondent no.4 / plaintiff, he is not wanting to challenge the judgment and decree of rejection of plaint. Thus, the respondent no.4 / plaintiff, even in the event of the appeal succeeding, would not be entitled to participate further in the suit as a plaintiff and his name shall stand struck off from the array of plaintiffs in the suit. 6. The counsel for the appellants / plaintiffs and the counsel for the respondents no.1 to 3 / defendants have been heard and the suit court record perused. 7. The appellants / plaintiffs and the respondent no.4 / plaintiff instituted the suit from which this appeal arises, pleading that (i) the grandfather of the plaintiffs and the defendants viz. Sahi Ram was an agriculturist and owned and possessed agricultural land in village Hastsal and Rajapur Khurd, New Delhi, besides a house in the village; (ii) the entire agricultural holding of village Rajapur Khurd was owned and possessed by villagers in Hastsal, as in village Rajapur Khurd there was no independent abadi in existence; (iii) before the commencement of the Delhi Land Reforms Act, 1954 (Reforms Act), Sahi Ram aforesaid was the khud khast in respect of the entire agricultural land owned and possessed by him; (iv) consolidation proceedings were commenced in the years 1952 and 53 in respect of both the villages under the provisions of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 and during the repartition proceedings along with other land, the land comprised in Khasra Nos.23/2, 8, 15/17, 25/2 and 4 situated in village Rajapur Khurd was allotted in the name of Sahi Ram; (v) at the time of commencement of the Reforms Act, the said land was shown in the revenue record as Banjar Kadim land and on the