CHHABIL DAS versus PAPPU

Citation: [2006] SUPP. 8 S.C.R. 42 · Decided: 31-10-2006 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed

Judgment (excerpt)

,__"" 
A 
CHHABILDAS 
v. 
PAPPU 
OCTOBER 31, 2006 
B 
[S.B. SINHA AND MARKANDEY KA TJU, JJ.] 
, 
{ 
Code of Civil Procedure, 1908-0rder XXJJ Rule 5-Suitfor injunction-
Death of plaintiff-Substitution of adopted son as legal heir-Order of 
c substitution not challenged-Dismissal of the suit-Jn second appeal and in 
appeal to this court legality of adoption questioned-Held : The question of 
adoption attained finality, the order of substitution not having been 
challenged-Hence, the same cannot be reopened-Hindu Adoption and 
Maintenance Act,1956-Sections 7 and 8. 
D 
Mother of respondent No. I filed a suit against appellant-defendant for 
permanent injunction restraining him from interfering with her possession 
of the suit land as a 'gair marusi tenant' which she had inherited after death 
of her husband. Appellant-defendant also filed a counter claim stating to be 
in possession of the suit land. 
E 
During pendency of the suits, plaintiff died and respondent No. I was 
substituted as her sole legal heir. It was contended that the suit could not be 
decreed in view of the fact that the widow (original plaintiff) had no right to 
adopt respondent No. I. The issue of adoption was held to be irrelevant for the 
suit, by the trial court. 
F 
The suit as well as counter claim was dismissed. The appeal and second 
appeal were also dismissed. Hence the present appeal. In the second appeal as 
well as before this Court the question of legality of order of adoption was 
raised. 
·~ 
G 
Dismissing the appeal, the Court 
HELD: I.I. Once the respondent was substituted in place of the original 
plaintiff, the question of reopening the question of adoption by this Court does 
not arise. The question of substitution of the plaintiff by respondent No. I, 
therefore, was in issue in a proceeding under Order XXII, Rule 5 CPC. The 
H 
42 
.. .,. 
• 
J.-.A 
CHHABIL DAS v. PAPPU [S.B. SINHA, J.] 
43 
application of respondent No.I for his substitution as legal heir was allowed A 
by trial court. The said order having not been questioned, attained finality. 
Such a question cannot be permitted to be raised in the second appeal or before 
this Court for the first time. (46-B-CJ 
1.2. The appellant did not deny or dispute that the respondent herein 
could represent the estate of his mother. When a question arose as to who is B 
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 C 
Hindu Adoption and Maintenance Act, 1956 had been complied with or not. It 
is in that view of the matter, the trial judge opined that the status of the 
respondent as an adopted son of the original plaintiff could not be looked into 
in the said case. (45-F-H) 
2. Principle of res judicata also applied in different stages of the same D 
proceedings. (46-C) 
Bhanu Kumar Jain v. Archana Kumar and Anr., [2005) 1 SCC 787 and 
lshwar Dutt v. Land Acquisition Collector and Anr., (2005) 7 SCC 190, 
referred to. 
CIVIL APPELLATE-JURISDICTION : Civil Appeal No. 4611 of2006. 
From the Judgment and Final Order dated 12.10.2004 of the High Court 
of Punjab and Harayan at Chandigarh in Regular Second Appeal No. 2474/ 
2001. 
E 
R.K. Kapoor, M.K. Verma, S.S. Yadav and Anis Ahmed Khan for the F 
Appellant. 
A.S. Nehra, Nikhil Jain Akshat Jain and Sunil Kumar Jain for the 
Respondents. 
The Judgment of the Court was delivered by 
S.B. SINHA, J. Leave granted. 
Appellant herein was a defendant in a suit filed by Respondent No. I 
herein for permanent injunction restraining him from interfering with possession 
G 
and cultivation of the suit land which was said to be in possession of the H 
44 
SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R. 
A 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. 
B 
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 

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