IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 6127-6128 OF 2002

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.

- 2 -

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.

- 4 -

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.

- 5 -

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.

- 6 -

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 )