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CASE NO.: Appeal (civil)  4611 of 2006

PETITIONER: Chhabil Das                                                                  

RESPONDENT: Pappu                                                                        

DATE OF JUDGMENT: 31/10/2006

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T (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

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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.\026 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

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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.