D.N. Nagaraja Iyer vs State of Madras and Union of India

P. Sathasivam, J.—First plaintiff is the appellant in the above Second Appeal. The first plaintiff viz., D.N. Nagaraja Iyer and one K. Krishnasamy Iyer filed O.S. No. 150 of 67 on the file of Additional District Munsif, Dharmapuri for mandatory injunction against the defendants, namely, State of Madras represented by District Collector, Dharmapuri, and Union of India represented by General Manager, Southern Railway, directing them to retransfer the suit property to the plaintiff and for recovery of possession of the same. The case of the plaintiff is briefly as follows:-

The suit property comprised in old Survey No. 32(B) extending to 6-48 cents was acquired by Government of Madras for and on behalf of the then South Indian Railway Company Limited for construction of Dharmapuri Railway Station, Loco Shed, Goods Shed, Yard and Staff Quarters on the then Morappur-Hosur line. Acquisition was made from one Subbaraya Iyer and Venkata Iyer, the forefathers of the plaintiff. Morappur-Hosur Railway line was dismantled in 1943 due to lack of traffic and other reasons. Consequently, the suit land was relinquished by the Railway company to the Government of Madras. It is further contended that in the year 1946 the Tahsildar of Dharmapuri on 11-6-1946 advertised the auction sale of the relinquished land calling upon the original owner or their descendants to apply for resale in their favour. The plaintiff sent an application to the District Collector for reassignment of the land in their favour. But they did not get any reply. The first plaintiff after coming to understand that the relinquished Railway lands are sought to be assigned to third parties, submitted an application on 7-1-63 to the District Revenue Officer, Salem, requesting him to drop or at least stay the assignment proceedings, pending disposal of their application for retransfer. The Revenue Department by its order dated 26-4-1964 has informed the plaintiff that the lands were not available for assignment as they were required for Railways. The suit property is no more required for the purpose for which it was acquired. New Railway line, Salem-Bangalore line is laid far away from the suit property. Therefore, the purpose of the acquisition has been ceased and the plaintiffs as the descendants of the original owners of the property acquired, are entitled to reassignment on payment of the cost price of acquisition. The plaintiffs issued a suit notice to the District Collector of Dharmapuri and the Union of India by the General Manager of Southern Railway on 30-5-66. The plaintiffs did not get any reply from them. Hence the present suit is filed as stated above.

The first defendant has filed a written statement in the following manner:-

The plaintiffs have not given the boundary for the suit property, hence it is not possible to locate the exact land claimed by them. The property was not acquired from Subbaraya Iyer and Venkata Iyer as alleged by the plaintiffs. The Old Survey No. 32/B which forms parts of New Survey No. 390 was acquired from one Veera Ragava Iyer and Kona Iyer. Notices under Land Acquisition Act were received by those persons and the cost of the land acquired was also paid to them. Since the lands were not acquired from Subbaraya Iyer and Venkat Iyer and the plaintiffs as the heirs of these persons have no right to file the suit. In 1941 the lands were temporarily transferred to the State Revenue Department and a portion of this land measuring 5 acres 20 cents was taken back by the Railway in 1962 and the Railway is still in possession and enjoyment of the said extent. The suit property and other properties were not effectively or permanently relinquished in favour of the Revenue Department. As such, the plaintiffs have no right to ask for a retransfer. The action of the Tahsildar was only a preliminary one and not conclusive, as an order of the competent authority is essential in the matter. The alleged order of the General Manager, Southern Railway dated 2-9-58 cannot confer any rights on the plaintiffs nor is it an acknowledgment of the plaintiffs'' title. It is only an advice to the plaintiffs to approach the competent authority in the Revenue Department and press the claims, if any. As the lands are not permanently relinquished, the applications of the plaintiffs under Board Standing Order 90, para 32 will not lie. This defendant has right to retain even relinquished land if it is likely to be again required for any public purposes. Apart from the portion of the land extending to Ac. 5-20 cents taken back by the Railway, a portion in the same Survey Number 390 is used by the Railways Department as the By pass road is running through the same. Another portion of the same survey number has been used for the construction of Block Office quarters, and a portion has been leased for petrol bunk. All these portions are thus used for public purposes and there is no land available for disposal. No portion of the land had been assigned to any third party. With these averments, the first defendant prayed for dismissal of the suit.

The second defendant, namely, Southern Railway filed a written statement more or less adopting the contentions of the first defendant. It is further contended that in 1941 the lands were only temporarily transferred to the Revenue Department and not permanently relinquished. After this, the defendant had to-take back an extent of 5-20 acres in S. No. 90 in connection with the Salem Bangalore Railway Project Works. The alleged correspondence of the Manager of the Southern Railway in 1958 could neither amount to a final and irrecoverable relinquishment nor any recognition of the plaintiff''s right to have any retransfer of the suit property. The State Government is the acquiring authority and the 2nd defendant has no direct connection with acquisition of land and this defendant is not at all a necessary party to the suit, hence prayed for dismissal of the same.

On the above pleadings, the learned Additional District Munsif, Dharmapuri, framed the following issues for trial :-

Whether the plaint description of property is correct?

Whether the suit lands were acquired by the first defendant in 1896-1904 for the purposes alleged in the plaint?

Whether the suit lands were acquired by the first defendant from plaintiff''s ancestors?

Whether the suit lands were relinquished by 2nd defendant to 1st defendant as alleged in para 5 of the plaint?

Whether the suit lands are now required for public purposes as alleged in the written statement of first defendant?

Whether the suit lands are available for assignment?

Whether the plaintiffs are entitled to assignment of the suit lands from first defendant, if so, what is the amount payable by the plaintiffs to first defendant and 2nd defendant as compensation?

Whether the plaintiff has any cause of action against 2nd defendant?

Whether the suit is barred by limitation?

Whether this suit is not maintainable without a proper and valid notice u/s 80, C.P.C

To what reliefs are plaintiffs entitled?

In support of the plaintiffs'' case apart from the second plaintiff, two more persons were examined as P.Ws.1 to 3 and Exs.A-1 to A-11 were marked.

The defendants in order to prove their defence, examined one Mara Bandu as D.W.1 and marked Exs.B-1 to B-8. On the basis of the evidence, the trial court came to the conclusion that neither the plaintiffs nor the defendants had satisfactorily located Survey No. 32-B in New Survey No. 390, accordingly answered issue No. 1 against the plaintiffs. On issue No. 2, the trial court came to the conclusion that the lands were acquired for construction of Railway Station, Loco Shed etc., which are necessarily connected with the Railway line. While accepting the plaintiffs'' case, the trial court held that the lands in Survey No. 32-B were acquired from their ancestors and held in favour of the plaintiffs. In respect of relinquishment, the trial court came to conclusion that there is no effective relinquishment by the Railway in favour of the Revenue Department, and answered the issue No. 4 accordingly against the plaintiffs. Likewise, on the basis of the materials, the trial court came to the conclusion that the lands acquired by the State Government are required by the State Government and the Railway for public purpose. In the light of the above discussions, the trial court held that the suit land was not available for assignment and the plaintiffs are not entitled to assignment of the suit land, consequently the trial court by judgment and decree dated 24-9-71 dismissed the suit with costs.

Against the judgment and decree of the learned Additional District Munsif, Dharmapuri, the unsuccessful plaintiffs filed appeal in A.S. No. 4 of 1977 before the Sub Court, Krishnagiri. The very same contentions were raised by the plaintiffs before the appellate court also. The appellate judge, after narrating the pleadings of the parties, determined the following points for consideration:-

Whether the description of property is incorrect? If so, whether the property is not identifiable?

whether the plaintiffs are not the defendants of the persons from whom the properties were acquired?

Whether the lands were not effectively and permanently relinquished by the Railways?

Whether the plaintiffs are entitled to the mandatory injunction prayed for?

Whether the appeal abates in entirety?

In the light of the Commissioner''s report, the lower appellate court came to the conclusion that the subject matter of the suit property is identifiable. Likewise, on the basis of the evidence, the appellate court came to the conclusion that the appellants failed to implead the children of late Kuppusamy Iyer since the appellants are not the only heirs of the original owner of the property. In respect of relinquishment, the Lower appellate court considered the case of the plaintiffs in detail and came to the conclusion that there had been no outright relinquishment, the Railways have set apart the land as eligible for relinquishment and entrusted the same to the Local Authority for disposal to the best advantage of the same. But, exercising the discretion, the Local Authorities had thought it fit not to re-allot the properties to the appellants/plaintiffs. In the above manner, the lower appellate court answered point No. 3 accordingly. With respect to the prayer for mandatory injunction, in view of the conduct of the plaintiffs and of the fact that now Anna Transport Corporation has occupied a portion of the property, a highway road also passed through the property, the relief of mandatory injunction, if granted, is would cause more harm to the defendants than the advantage which the appellants/plaintiffs would gain, consequently rejected the relief sought for in respect of mandatory injunction. The other interesting and important question is whether the appeal, namely, A.S. 4 of 1977 abates in its entirety or not? Admittedly, the 2nd appellant before the Sub Court, Krishnagiri, viz., K. Krishnasamy Iyer, 2nd plaintiff, died and in as much as the legal representatives having not been brought on record, the appeal not only abates as against the second appellant, but in entirety. It is seen that the second appellant died on 10-6-1977. It is seen from the court records that the learned Subordinate Judge dismissed the applications filed u/s 5 of the Limitation Act as well as under Order 22, Rule 4 for condoning the delay in filing the petition to set aside the abatement caused due to the death of the second plaintiff. Even after the dismissal of the above applications, the other contesting party, namely, first plaintiff/first appellant did not file any appeal or revision against the orders passed in the Interlocutory applications. Hence it is evident that the appeal, that is, A.S. 4 of 1977 has abated as against the second appellant therein. Before the lower appellate court, the learned counsel for the defendants stressed their point stating that the appeal abates in entirety. While accepting the case of the defendants, the learned Subordinate Judge, Krishnagiri, by judgment and decree dated 27-7-1981 dismissed the appeal, confirming the judgment and decree of the trial court.

Against the findings of the courts below, the first plaintiff namely, D.N. Nagaraja Iyer filed the present Second Appeal. While entertaining the Second Appeal, this Court framed the following substantial question of law:-"Whether the abatement of the suit in respect of one of the plaintiffs will operate as abatement in respect of the other plaintiffs also?

Mr. J.R.K. Bhavanantham, learned counsel for the appellant, has vehemently contended only one aspect viz., the abatement of appeal in its entirety or in respect of the death of the second plaintiff, the other party, namely, the first plaintiff, can pursue the suit. With regard to the other aspect, he has not seriously raised any objection. With respect to the abatement issue, Mr. Bhavanantham has relied upon recent judgment of this Court reported in Angammal and two others v. M. Ramalinga Pandaram and seven others 1992-1 L.W. 543. He very much relied upon paras 9 and 10 in the said judgment which are extracted hereunder:-

Be that as it may, the question is whether cause of action survives the death of the first respondent, and if so, to what extent and with what consequence in respect of the further course of action in the appeal. The vital aspect that has to be kept under consideration is that each of the reversioners is entitled to his own specific share and be could have sued for his own share and not a decree in respect of the same. The decree passed, therefore, could not be said to be joint and indivisible.

Though the suit has been filed by two persons joining together and one decree has been passed in the said suit, having regard to the peculiar facts and circumstances of the case and also the nature of the rights of parties claimed therein, I am of the view that in substance in reality, the suit involved consideration of the distinct rights and independent claims of the plaintiffs, and therefore, it could not be legitimately contended that the appeal abated even in respect of the claims of the other plaintiff who is presently the second respondent before this Court. In Harihar Prasad Singh and Others Vs. Balmiki Prasad Singh and Others, the Apex Court held that where each one of the plaintiffs could have filed a suit for his share, the mere fact that all of them joined together as plaintiffs and filed one suit does not mean that if for one reason or the other the claim of one of them fails or abates, the suit in respect of the others also fails or abates. In the opinion of the Apex Court, the decree is in "substance combination of several decrees in favour of several plaintiffs. The significance of one of such plaintiffs cited as a respondent in the appeal becoming dead and the appeal abating as against him for the failure to bring on record his legal representatives is that the decree, in so far as he is concerned, cannot be set aside. Consequently, in my opinion, there would be no question of any conflict of decrees resulting in a case where the decree passed is in effect and substance a combination of many decrees. The objection of the counsel for the respondents does not merit my acceptance and the same shall stand rejected.

On the other hand, the learned counsel for the respondents relied on the judgments reported in:-

Sri Chand v. Jagdish Prashad AIR 1966 S.C. 1427

Innasi Udayar and Others Vs. S. Chinnasamy Raju (decd.) and Others,

Dwarka Prasad Singh and Others Vs. Harikant Prasad Singh and Others,

The reading of the above judgments mentioned by the counsel for the respondents discloses that once the appeal is abated as against one of the appellants by reason of the Legal Representatives of the appellant not having been brought on record, the decree appealed against has become final so far as the appellant is concerned. In that event, if the appellate court allowed the appeal of other appellants, there will be conflicting decrees, one against the deceased appellant and other in favour of the surviving appellants in respect of the same subject. Hence I am in entire agreement with the arguments of the learned counsel for the respondents.

It is also useful to refer another Division Bench judgment of this Court reported in Kanthimathi, G. v. Lakshmi Ammal (1990-2-L.W. 448). In identical circumstances, the Division Bench of this Court referred supra after referring several decisions of various High Courts as well as judgments of Supreme Court held that when one of the appellants died and if the Legal representatives are not brought on record, the appeal abates in its entirety. In the judgment rendered in 1990 2 L.W. 48 the question was.

"Whether by the failure to implead the legal representatives of the deceased 4th defendant, the appeals abate as a whole or not, in view of 0.22, R. 4 (3), read with R. 11, C.P.C.?" In order to apply the decision referred to above, it is worthwhile to set out certain factual aspects in the decision referred to above:-

The suit in O.S. No. 151 of 1980 was filed by the appellants in A.S. No. 8 of 1983 for partition and separate possession of their 9/24 share and for directing defendants 2,4,5 and 7 to render accounts from 5-10-1972 till the date of delivery of possession and in the alternative to pass the decree for the relief of partition on the basis of the partnership deeds as well as taking of such accounts as are necessary to determine the shares of the plaintiffs in the plaint, the case of the plaintiffs is that the deceased Ganapathia Pillai had got three wives and that the first plaintiff is his third wife and through her plaintiffs 2 to 5 were born. Defendants 2 and 3 are the sons of Ganapathia Pillai through his first wife, the first defendant herein, and defendants 4 to 8 are the children of the said Ganapathia Pillai through his second wife Ponnammal and that the plaintiffs are entitled to 9/24th share while defendants 1 to 8 are each entitled to 1/12th share. It is also alleged that defendants 2 to 7 along with their father were partners while the plaintiffs 2 to 5 were admitted to the benefits of the partnership and that defendants 4,5 and 7 have to account for the income from the lorries run by them from 5-10-1972 till they deliver separate possession. It is only defendants 1 to 3 who dispute the marriages of the first plaintiff and Ponnammal with Ganapathia Pillai and the legitimacy of plaintiffs 2 to 5 and defendants 4 to 8, in their written statement, and submitted that they are not entitled to submit any account, while the case of the plaintiffs as well as defendants 4 to 8 is that they are also legal heirs and that they are entitled to equal shares. It is seen that a joint written statement was filed by defendants 5 and 7 which was adopted by defendants 4 and 8. Defendants 4, 5, 7 and 8 claimed 4/12th share and for effecting division of their share, they paid separate court fee. On the basis of the pleadings, the trial court framed as many as 10 issues and 3 additional issues wherein No.8 is relevant which deals with the entitlement of shares by plaintiffs and defendants 4 to 8. The lower court, on the basis of the evidence adduced in the suit, held under issue No. 8 that the plaintiffs and defendants 4 to 8 are not entitled to any share and answered the issue against them. It is only against the said finding and consequential dismissal of the suit, these two appeals are filed. It is not in dispute that the fourth defendant died on 24-10-1987 leaving behind his wife Chellammal, one daughter by name Ponnammal and two sons Ganapathy and Sankarasadasivam as his legal representatives and that the appellants have not taken any steps to set aside the abatement and to implead to legal representatives of the deceased fourth defendant. It is only in the circumstances we have to see whether the presence of the legal representatives of the deceased fourth defendant are necessary for determining the points involved in the appeal and deciding the issues.

In the light of the above facts, the Division Bench referred above, after referring various decisions of this Court as well as the Supreme Court, came to the conclusion that if the legal representatives are not brought on record after the death of one of the contesting appellant, the entire appeal abates. The ratio laid down in the above decision by the Bench of this Court referred supra is on all fours applicable to the facts of this case and by applying the ratio, I find much force in the contentions of the learned counsel for the respondents. In view of the law laid down by the Apex Court in various decisions referred to above as well as the decision of the Division Bench of this Court in 1990 2 L.W. 448, I am unable to follow the decision rendered in Angammal and others Vs. M. Ramalinga Pandaram and others, Hence the objections raised by the respondents with respect to the abatement of entire appeal before the Sub Court, Krishnagiri, are well founded. Added to it, even though the first plaintiff/first appellant before the Sub Court Krishnagiri, filed application on 14-9-77 for bringing the Legal Representatives of the 2nd appellant on record with a petition to condone the delay in representing the application to implead the legal representatives, after dismissal of the applications filed u/s 5 of Limitation Act as well as under Order 22, Rule 4, C.P.C., did not file any appeal or revision. Hence, in the light of the above factual background and in view of the law laid down by the Supreme Court and Bench of this Court referred to above, I do not find any merit in the contentions of the appellant. Accordingly, the Second Appeal fails and is dismissed. No order as to costs.