Augustine George Masih, J. - (1.) C.M. No. 14249 -C of 2014 Prayer in this application is for condonation of delay of 154 days in re -filing the appeal. The reason for the delay, as has been pointed out by the counsel for the applicant/appellant, is that after filing of the appeal, certain objections were raised by the Registry. The file was taken back and after rectifying the said objections, the appeal was re -filed. Thereafter again, certain fresh objections were raised and after removal of those objections, the appeal was re -filed, which has resulted in delay of 154 days in re -filing the appeal. The application is supported by the affidavit of the applicant/appellant. For the reasons mentioned in the application, the same is allowed. Delay of 154 days in re -filing the appeal is condoned. C.M. No. 14250 -C of 2014 Prayer in this application is for condonation of delay of one day in filing the appeal. For the reasons mentioned in the application, which is duly supported by the affidavit of the applicant/appellant, the same is allowed. Delay of one day in filing the appeal is condoned. RSA No. 5999 of 2014 Challenge in this appeal is to the judgment and decree passed by the Civil Judge (Junior Division), Panchkula dated 09.10.2012, whereby the suit for declaration to the effect that the appellant -plaintiff is the absolute owner in cultivating physical possession over the land measuring 8 Kanal 8 Marlas, out of which, his share is 4 Kanal 4 Marla and to the effect that the judgment and decree dated 20.12.1982 passed by the Sub -Judge, Second Class, Ambala City followed by Mutation No. 716, dated 29.06.1987 sanctioned by the office of Tehsildar, A.C./First Grade and the jamabandi for the year 1955 -56 should not be binding upon the appellant -plaintiff as the same are void, has been dismissed on the ground of limitation, appeal against which preferred by the appellant -plaintiff stands dismissed by the Additional District Judge, Panchkula on 29.11.2013.
(2.) It is the contention of the learned counsel for the appellant that the predecessor -in -interest of the property in question measuring 8 Kanal 8 Marla was holding the land as a Gair Marusi tenant. He contends that as the said tenancy is inheritable, the appellant -plaintiff has a share in the said property. A suit was filed by the respondent -Arjun, who is real brother of appellant, for declaration to the effect that he is owner -in -possession of 8 Kanal and 8 Marla of land, which was decreed by the Sub -Judge, Second Class, Ambala City on 20.12.1982. In pursuance to the said decree, mutation dated 29.06.1987 was sanctioned in favour of his brother respondent -defendant. He contends that in the said suit, the appellant -plaintiff, who has equal rights to the property, has not been impleaded as a party and, therefore, the said judgment and decree is not binding on him and inoperative. He further states that the said decree is void ab -initio as it is a result of fraud having been played upon the Court by not impleading him as a party although he was a necessary party and for challenging the said decree, there is no limitation and the same can be set aside at any stage. In support of this contention, he has placed reliance upon a judgment of the Supreme Court in S.P. Changalvaraya Naidu (dead) by L.Rs. vs. Jagannath (dead) by L.Rs.,, 1994 (1) R.R.R. 253. His further contention is that the decree passed by a Court without jurisdiction is a nullity and, therefore, it also can be challenged at any stage. In support of this contention, he places reliance upon the judgment of the Supreme Court in Mantoo Sarkar vs. Oriental Insurance Co. Ltd. and others, : 2009 (1) R.C.R. (Civil) 417. Prayer has, thus, been made for setting aside the impugned judgments and decree passed by the Courts below and for decreeing the suit of the appellant -plaintiff.
(3.) I have considered the submissions made by the learned counsel for the appellant and with his assistance, have gone through the impugned judgments.;