AI Structured Summary
Not yet generated for this judgment
Judgment
Ismail, J.—The respondent herein filed O. S. No. 1 of 1963 on the file of the Court of the Subordinate Judge of Dindigul for a declaration of
his title to the lands described in the plaint schedule and for recovery of possession thereof from the defendants with past and future profits.
Originally, there were 24 defendants to the suit and by Order dated 6-4-1963 the second defendant was struck off, on the plaintiff giving him up,
with the result that defendants 1 and 3 to 24 remained as contesting parties to the suit. According to the respondent, the lands described in the
plaint were situate in the village of Narasingapuram, Kandamanickanur Zamin, Periayakularn Taluk, and the said Zamin had been taken over by the
State of Madras under the Madras Act 26 of 1948; the suit lands originally belonged to one G. V. Ramaswami and three others and they were
comprised in patta No. 9 in the village of Narasingapuram; the respondent purchased the lands from the owners under an oral sale and also
obtained possession; the landlord recognised the transfer in favour of the respondent and also directed the transfer of the suit lands from patta No.
9 to Patta No. 110 in the name of the respondent by order dated 16-9-1950; after the abolition of the Zamin, the Government who took over the
whole Estate had granted ryotwari patta No. 490 in favour of the respondent with respect to the suit lands; about three years ago the defendants,
who had no manner of right, title or interest in the suit lands, forcibly trespassed into the lands and they were cultivating the lands, indiscriminately in
various bits, despite the respondent''s protest. The case of the respondent, therefore, was that the defendants were liable to deliver possession of
the properties to the respondent and also to pay mesne profits. ''It is pertinent to point out that the respondent stated in the plaint that the cause of
action for the suit arose in 1950 when the respondent became the owner of these lands and in 1959 when the defendants in a body trespassed on
the suit lands and occupied them.
A detailed written statement was filed by defendants 6 and 10, which was adopted by defendants 1, 3, 4, 8, 9 and 11 to 22. Subsequently,
defendants 4. 11, 18 and 20 also filed an additional written statement. In the written statement the defendants contended that the respondent had
neither title nor possession; the suit lands did not belong to the respondent''s alleged vendors, namely, G. V. Ramaswami Naidu and three others;
the alleged oral sale pleaded by the respondent was not true; even if true, it was not valid, as it was not in writing and registered; the defendants
and their predecessors-in-title have valid title and have been in possession in their own right for a long number of years; the alleged trespass was
not true; the plaint was defective due to lack of particulars regarding the exact portions occupied by each of the defendants, the date of alleged
trespass etc.; and therefore, the respondent was not entitled to declaration, possession or mesne profits. The averments contained in paragraph 10
of the written statement filed by defendants 6 and 10 are significant. They had stated there:
The plaintiff has absolutely no title to the suit land. He has never been in enjoyment thereof. These defendants have been always in possession and
enjoyment of the suit lands by virtue of purchase from persons who have been the owners and in enjoyment, for many years for ever a statutory
period. These defendants have been paying kist also for the said lands ............ Thus, title and possession have been always with those defendants
who have been in possession of the lands by virtue of the title in their favour."" In these additional written statement it was contended that the
respondent had not given the boundaries for the lands claimed by him and that the defendants purchased the lands in their respective occupation
from lawful owners and are in possession in their own right. It was also contended in the additional written statement that defendants 3, 11, 14 and
16 had filed claim petitions with respect to some portions of the suit lands, as they were attached in E. P. No. 969 of 1961 in S. C. No. 216 of
1956, District Munsif''s Court, Periakulam, by one Peria Perumal Tevar and their claim was allowed and similarly, defendants 1, 2, 13, 15 and 16
have also filed claim petitions with respect to some portions of the suit lands when they were attached in E. P. No. 1023 of 1961 in S. C. No. 297
of 1957, District Munsif''s Court, Periakulam, by one Kondayasami Naidu and their claim was also allowed.
On these pleadings the learned Subordinate Judge framed eleven issues and those that are relevant for the present purpose are:--
Whether the oral sale alleged by the plaintiff is true and valid and whether the plaintiff has got any title to the suit properties?
Whether the plaintiff or his alleged vendor was ever in possession of the suit properties?
Whether the patta No. 9 mentioned in the plaint is true, valid and final so far as the suit lands are concerned?
Whether the defendants or their predecessors-in-title have been in possession and enjoyment of the suit lands for more than the statutory
period?
Whether the order in M. C. No. 25 of 1953 is binding on the defendants?
Whether the alleged trespass by the defendants is true?
Whether the plaint is defective due to lack of particulars regarding the exact portions occupied by each of the defendants?
After considering the materials placed before him and on an elaborate consideration of the evidence before him, the learned Subordinate Judge
found that the oral sale was true that the respondent had proved his title and possession within twelve years prior to the suit, that the patta No. 9
was true, that the setting aside of patta No. 9 was not with reference to the suit lands, that the defendants have failed to prove adverse possession
for over statutory period, that the order in M. C. No. 25 of 53 was binding on the defendants, that the alleged trespass was true and that the plaint
was not defective for want of particulars. Obviously these findings relate to the issues enumerated above. As a result of his findings, the learned
Subordinate Judge, by his judgment and decree dated 23rd October 1964, decreed the suit of the respondent as prayed for. Against that
judgment and decree the defendants preferred an appeal to the District Court, Madurai. The learned District Judge, by his judgment and decree
dated 22nd November 1965, affirmed the findings of the learned Subordinate Judge and dismissed the appeal of the defendants. Now, it is
relevant here to refer to the terms of the decree of the learned Subordinate Judge. The decree was:--
That the defendants 1 and 3 to 24 do put the plaintiff in possession of the suit properties (described here-under) without any let or hindrance;
that the plaintiff be and hereby is entitled to past and future profits till delivery of possession, the quantum of which will be determined under O.
20, Rule 12. Civil Procedure Code.
Since the learned District Judge dismissed the appeal, affirming the findings of the learned Subordinate Judge, the appellate decree merely stated
that the appeal be and the same hereby is dismissed.
Against the judgments and decrees of these two Courts, defendants 1, 3, 5, 6, 8 and 10 to 21 preferred S. A. No. 438 of 1966 on the file of
this Court on 24-3-1966. During the pendency of the appeal, the 9th appellant is said to have died on or about 1-11-1966 and the 5th appellant is
said to have died on 5-4-1967, Till now no application has been filed to bring the legal representatives of the said two appellants on record. Under
these circumstances, on 26-10-1967 the respondent-plaintiff filed the present application, namely C. M. P. No. 13705 of 1967, praying for an
order directing that S. A. No. 438 of 1966 be rejected and dismissed as abated. The case of the respondent, as set out in the affidavit filed in
support of the said application, is as follows:
On account of the abatement of the appeals as mentioned above by the death of the 5th and 9th appellant in this case I submit that there is now an
absolute legal impediment for the appeal being proceeded with as far as the other appellants are concerned and the entire appeal has to be
dismissed. The judgment and decree of the Courts below so far as the legal representatives of the deceased 5th and 9th appellants are concerned
has now become final and conclusive. The judgment and decree of the Courts below only proceed on grounds common to each one of the 17
appellants in this second appeal and there is a joint and indivisible decree against all the defendants-appellants and each of the 17 appellants has
attacked the judgment of the Courts below on grounds common to all the appellants. I respectfully submit that this Court will not now be able to
deal with the matter in controversy so far as regards the rights and interest of the appellants other than the above deceased appellants, and the
appeal without the legal representatives of the deceased appellants is not properly constituted. The success of the appeal so far as the remaining
appellants are concerned will certainly lead to the Court coming to a decision which will be in conflict with the decision between the two deceased
appellants and myself and would therefore, lead to the Court passing a decree which will be contradictory to the decree which had become final
with respect to the same subject-matter between, the two deceased appellants and myself. Any decree in favour of the surviving appellants will be
ineffective and could not be successfully executed. The abatement of appeal has not only made the decree between the deceased appellants and
myself final, but has also as a necessary corollary affected the remaining appellants and the remaining appellants cannot in any way modify the
decree directly or indirectly.
Mr. V. Vedantachari, the learned Counsel for the respondent-plaintiff and the petitioner in the above Civil Miscellaneous Petition argued on the
basis of the said averment contained in the affidavit filed in support of the petition. Mr. R.S. Venkatachari, the learned Counsel for the appellants,
did not dispute the proposition that by reason of the deaths of the 5th and 9th appellants and by reason of their legal representatives not having
been brought on record within the time prescribed by law, the appeal has abated as far as they are concerned. The only question that is in dispute
is, whether, as a result of the abatement of the appeal with respect to the 5th and 9th appellants, the appeal itself, even with reference to the
surviving appellants, has become incapable of being proceeded with.
The legal position in this behalf is settled by a series of decisions of the Supreme Court. The State of Punjab Vs. Nathu Ram, was a case in
which certain amount was awarded as compensation by the Arbitrator for acquisition of certain lands belonging to two individuals, Labhu Ram and
Nathu Ram, under the Defence of India Act, 1939. The State of Punjab had preferred an appeal against the award. Pending appeal. Labhu Ram
died and his legal representatives were not brought on record. In that situation, the question was, whether the appeal as against Nathu Ram also
had abated and was liable to be dismissed. The Supreme Court pointed out at P. 90:
It is not disputed that in view of Order 22, Rule 4, Civil Procedure Code, hereinafter called the Code, the appeal abated against Labhu Ram
deceased, when no application for bringing on record his legal representatives had been made within the time limited by law. The Code does not
provide for the abatement of the appeal against the other respondents. Courts have held that in certain circumstances, the appeals against the co-
respondents would also abate as a result of the abatement of the appeal against the deceased respondent. They have not been always agreed with
respect to the result of the particular circumstances of a case and there has been consequently, divergence of opinion in the application of the
principle. It will serve no useful purpose to consider the cases. Suffice it to say that when Order 22, Rule 4 does not provide for the abatement of
the appeals against the co-respondents of the deceased respondent there can be no question of abatement of the appeals against them. To say that
the appeals against them abated in certain circumstances, is not a correct statement. Of course, the appeals against them cannot proceed in certain
circumstances and have, therefore, to be dismissed. Such a result depends on the nature of the relief sought in the appeal.
Having laid down the above position in law, the Supreme Court in that case held that since the amount awarded was awarded jointly in favour of
both and the subject-matter of the appeal being the quantum of that compensation and not the apportionment thereof between Labhu Ram and
Nathu Ram, the abatement of the appeal as against Labhu Ram rendered the appeal incapable of being proceeded with against Nathu Ram alone
and consequently dismissed the appeal.
Ram Sarup Vs. Munshi and Others, dealt with a case of an appeal by the vendees against a pre-emption decree. The appellants were five in
number and one of the appellants, Mehar Singh, died pending appeal and his legal representative was not brought on record within the time limited
by law. In that situation, the question arose, whether the appeal of the other four appellants also was liable to be dismissed. After referring to the
nature of the interest acquired by the vendees under the sale deed, the Supreme Court observed at P. 566:
It is therefore, not a case of a sale of any separated item of property in favour of the deceased-appellant, but of one entire set of properties to be
enjoyed by two sets of vendees in equal shares. It is clear law that there can be no partial pre-emption because pre-emption is the substitution of
the pre-emptor in place o� the vendee and if the decree in favour of the pre-emptors in respect of the share of the deceased Mehar Singh has
become final it is manifest that there would be two conflicting decrees if the appeal should be allowed and a decree for pre-emption in so far as
appellants 2 to 5 are concerned is interfered with. Where a decree is a joint one and a part of the decree has become final, by reason of
abatement, the entire appeal must be held to be abated.
It may be noted that the decision in The State of Punjab Vs. Nathu Ram, dealt with a case of death of one of the respondents, while the present
case dealt with case of death of one of the appellants. .The principle is this: Once an appeal has abated as against one of the appellants, by reason
of the legal representatives of that appellant not having been brought on record, the decree appealed against has become final so far as| that
appellant is concerned; in that event, if the appellate Court was to allow the appeal of the other appellants, there will be conflicting decrees, one
against the deceased appellant and the other in favour of the surviving appellants in respect of the same subject-matter and that cannot be so in
law.
The next decision is Rameshwar Prasad and Others Vs. Shyam Beharilal Jagannath and Others, . That was a case in which nine persons
instituted a suit for ejectment and recovery of rent against two defendants on the allegation that defendant No. 1 was the tenant-in-chief who had
Sub-let the premises to defendant No. 2. The suit was decreed by the trial Court, but the appellate Court reversed the decree. The plaintiffs
preferred a second appeal and during the pendency of the second, appeal Kedar Nath, one of the plaintiffs, died. The question was, by reason of
the death of Kedar Nath and the failure to bring his legal representative on record; within the time prescribed by law, whether the appeal of the
other appellants; also was liable to be dismissed. Before the Supreme Court reliance was placed on Order 41, Rule 4 of the CPC for the
contention that the appeal of the other appellants could be proceeded with. After referring to Order 41, Rule 4 and Order 22, Rule 9, and the
earlier decision of the Supreme Court in The State of Punjab Vs. Nathu Ram, , the Supreme Court pointed as follows at p. 1904:
No question of the provisions of Rule 4 of Order 41 overriding the provisions of Rule 9 of Order 22 arises. The two deal with different stages of
the appeal and provide for different contingencies. Rule 4 of Order 41 applies to the stage when an appeal is filed and empowers one of the
plaintiffs or defendants to file an appeal against the entire decree in certain circumstances. He can take advantage of this provision, but he may not.
Once an appeal has been filed by all the plaintiffs the provisions of Order 41, Rule 4 became unavailable. Order 22 operates during the pendency
of an appeal and not at its institution. If some party died during the pendency of the appeal, his legal representatives have to be brought on the
record within the period of limitation. If that is not done, the appeal by the deceased appellant abates and does not proceed any further, There is
thus no inconsistency between the provisions of Rule 9 of Order 22 and those of Rule 4 of Order 41, C. P. C. They operate at different stages and
provide for different contingencies. There is nothing common in their provisions which make the provisions of one interfere in any way with those of
the other.
We do not consider it necessary to discuss the cases referred to at the hearing. Suffice it to say that the majority of the High Courts have taken the
correct view, viz., that the appellate Court has no power to proceed with the appeal and to reverse and vary the decree in favour of all the plaintiffs
or defendants under Order 41, Rule 4 when the decree proceeds on a ground common to all the plaintiffs or defendants, if all the plaintiffs or the
defendants appeal from the decree and any of them dies and the appeal abates so far as he is concerned under Order 22, Rule 3.
Their Lordships of the Supreme Court thereafter referred to the various decisions of the High Courts with reference to which they made the said
observation.
union of india (UOI) Vs. Sree Ram Bohra and Others, dealt with a case in which two persons representing a joint Hindu family filed a suit
against the Union of India for recovery of a certain amount of money by way of compensation on account of loss and damage suffered by them
owing to the non-delivery of eleven bales of cloth consigned to be carried by the Railway. The trial Court passed a decree in their favour and the
Union of India preferred an appeal. Pending the appeal. one of the plaintiffs died and the legal representative of that plaintiff was not brought on
record. The question that came up for consideration was, whether the appeal could be proceeded with against the other respondent alone. In ""that
connection the Supreme Court observed at P. 1534:
For the purpose of the suit, there were two plaintiffs and on the death of one of them it was necessary for the opposite party to implead his heirs
and legal representatives within time. It failed to do so and, therefore, the appeal against those heirs and representatives of Bilas Rai Bohra was
rightly held to have abated. The result of such abatement makes this appeal against the other respondent incompetent as the decree against both
the respondents, viz., Bilas Rai Bohra and Shri Ram Bohra was a joint decree. There was nothing in the decree to indicate for whose benefit it was
passed or in what proportions the two decree-holders were to get the decretal amount. The appeal against Shri Ram Bohra was, therefore,
incompetent
The next decision of the Supreme Court is Sri Chand v. Jagdish Pershad, AIR 1966 SC 1427. That was a case where five persons stood
sureties for satisfaction of a decree to be passed in a suit. When the decree-holder sought to execute the decree against the sureties, they objected
to the same on several grounds. The Subordinate Judge overruled the objections and the decision of the Subordinate Judge was confirmed by the
High Court. Thereafter, an appeal was preferred to the Supreme Court. During the pendency of the appeal, one of the sureties died and the legal
representatives of that surety were not brought on record. The question was whether the other sureties could have continued the appeal. Holding
that the other sureties could not continue the appeal and the appeal was liable to be dismissed, the Supreme Court observed as follows at p. 1429:
Basant Lal died after the order of the High Court under appeal. He had preferred an appeal, but since the legal representatives to his estate have
not been brought on record, his appeal has abated. The order of the High Court holding that the sureties are liable to satisfy the claim
notwithstanding the objections raised by Basant Lal has become final. In the appeal filed by the appellants 1 and 3 if this Court holds that the High
Court was in error in deciding that the surety bond was not enforceable because it was not registered, or that the first respondent has done some
act which has discharged the sureties from liability under the bond, there would unquestionably be two inconsistent orders--one passed by the High
Court holding that the surety bond was enforceable, and the other, the view of this Court that it is not enforceable."" Their Lordships referred to
their earlier decisions, already mentioned in this judgment, and came to the conclusion that the appeal even by the other sureties had abated and
was liable to be dismissed.
Mr. R. S. Venkatachari contended that such a result will not follow. He referred to a decision of this Court in Peria Perumal Muthirian and
Others Vs. Pichan alias Karupan Muthirian and Others, The facts of that case are not clear from the judgment. The relevant passage is:
A suit to recover possession of land from a number of trespassers stands, however, on a different footing. The plaintiff could proceed against one
or more of them as he chose. We are, therefore, of opinion that the right to sue survived against the surviving defendants so far as their interests are
concerned.
I would like to make two observations with regard to this judgment. The judgment dealt with a case of one of the defendants dying during
pendency of the suit itself and it has no application to a case where after filing an appeal one or more of the appellants dies. Secondly that case had
no occasion to consider the possibility of conflicting decrees coming into existence which was the basis and reasoning behind the conclusion in the
decisions already referred to. Then Mr. Venkatachari, strongly relied on the Full Bench decision of Allahabad High Court in Baij Nath and
Another Vs. Ram Bharose and Others, In my opinion that judgment does not help the learned Counsel, but on the other hand supports the
contention put forward on behalf of the plaintiff-respondent. The Full Bench in that case pointed out at p. 569:
The position, therefore, is that the question whether the abatement is partial or total will be dependent on the nature of the right claimed in the suit.
In the case of an appeal the decision will have to be with reference to the nature of the decree appealed against.
In answering the reference to the Full Bench, the learned Judges in that case expressed their opinion in the following terms at p. 571:
If in a suit a plaintiff makes a claim against a number of defendants on common grounds and all the defendants also contest the suit on common
grounds and the suit is decided in favour of the plaintiff against all the defendants, an appeal filed by all the defendants can be heard in favour of the
remaining defendants after one of the appealing defendants has died during the pendency of the appeal and his legal representatives have not been
brought on record so that his appeal has abated, only if the rights and interests of the surviving defendants were not joint and indivisible with those
of the deceased defendant, and in the event of the success of the appeal, it does not lead to two inconsistent and contradictory decrees.
Far from supporting Mr. R. S. Venkatachari this judgment is really in accord with the decision of the Supreme Court already referred to. As a
matter of fact this decision was cited with approval by the Supreme Court in Rameshwar Prasad and Others Vs. Shyam Beharilal Jagannath and
Others, already referred to.
Next Mr. R.S. Venkatachari contended that there is a class of suits like suits for declaration, for possession and specific performance to which
this principle will not apply. In my opinion, there Is no scope for such general classification. To a particular case whether this principle will apply or
not will depend upon the cause of action, the nature of the relief claimed and the nature of the decree granted. In the case of an appeal whether this
principle will apply or not will depend primarily upon the nature of the decree appealed against
The next question for consideration is whether this principle applies to the decree which is the subject-matter of the present second appeal. I
have already given the substance of the case of the plaintiff. According to the plaintiff all the defendants in the action in a body trespassed into his
land and started cultivating various bits indiscriminately. As against this the defendants did not put forward a case that they were owners of specific
and identified plots of land in the suit property. An extract from the written statement filed by defendants 6 and 10 which I have given already will
clearly show that the case of the defendants was that they were owners of the entire suit land without reference to each one of them owning distinct
and separate plots or portions in the suit land. It is admitted by the learned Counsel for the appellants (Mr. R. S. Venkatachari) that such a case
was not put forward either in the written statement or in the grounds of appeal before the lower appellate Court or even in the grounds of second
appeal before this Court. However the learned Counsel contended that in the evidence the defendants had put forward a case that they were
entitled to particular plots of land by virtue of purchase. The Courts below have come to the conclusion that they have not established that they
were entitled to any portion in the suit land. The decree extracted by me above is a joint and indivisible decree against all the defendants and the
decree does not provide that each one of the defendants will have to put the plaintiff in possession of the respective portions of the suit land in their
possession or occupation. In view of this it is clear that the decree appealed against is a joint and indivisible decree against all the defendants-
appellants and consequently once the appeal has abated against one or more of the appellants, the appeal by the other appellants cannot be
proceeded with and has to be dismissed on the decisions of the Courts already referred to by me.
Hence I allow C. M. P. No. 13705 of 1967 and dismiss S. A. No. 433 of 1966. No order as to costs either in the C. M. P. or in the Second
appeal. No leave.