Jeon Singh vs Chanan Singh and others

Pandit, J.—This appeal arises out of a suit brought by Jiwan Singh for possession of the land in dispute and for recovery of Rs. 810/- as mesne profits.

According to the allegations of the Plaintiff, the land in question belonged to Arjan Singh who died issueless about 10 years ago. Out of the suit land, he had mortgaged 13 bighas and 10 biswas with one Indar Singh and the remaining land was in his actual possession. Arjan Singh was his real cousin and, therefore, the Plaintiff was his sole heir. After the death of Arjan Singh, however, Chanan Singh and others, Defendants, took unlawful possession of the suit land, alleging themselves to be the heirs of the deceased and they also redeemed the land which was under mortgage Thereupon, the Plaintiff brought the present suit for actual possession of the land, which was not under mortgage and for symbolical possession of that which was under mortgage. Since the Defendants were not entitled to get the produce of the land which was not under mortgage, a decree for Rs. 810/-as mesne profits for three years was also claimed. It was also stated that the Defendants took illegal possession of the land which was not under mortgage about 10 years ago and they redeemed the land under mortgage about 9 years ago.

It may be mentioned that one of the Defendants, namely,Kahla Singh, died and the application for bringing his legal representative on the record was not brought within limitation.

This suit was contested by the Defendants, who controverted the allegations made by the Plaintiff. They pleaded that since the legal representatives of Kahla Singh, deceased, Defendant, had not been impleaded within limitation, the suit abated in toto. They averred that the Plaintiff was not entitled to the land in dispute. It was also stated that the suit was barred by time and the Plaintiff was not entitled to get mesne profits.

On the pleadings of the parties, the following issues were framed:

Whether the legal representatives of Kahla Singh deceased, Defendant, have been impleaded within limitation ? If not, what is its effect ?

Whether the Plaintiff is entitled to the land in dispute left by Arjan Singh deceased ?

Whether the suit is within limitation ?

Whether the Plaintiff is entitled to get mesne profits ? If so, to what extent ?

Whether the court-fee has not been properly paid ?

Relief.

The trial Judge held that Kahla Singh died on 12th December, 1957 and the application to implead his legal representatives was made on 13th March, 1958, that is, 91 days after his death. Since the share of Kahla Singh deceased, Defendant, was specified in the Jamabandi as one-twentyfourth, the trial Judge held that the suit had not abated in toto, but the same had abated against Kahla Singh deceased to the extent of his one-twentyfourth share in the land in dispute. It was also held that the Plaintiff was entitled to the land in dispute left by Arjan Singh deceased and his suit was within limitation. As regards the mesne profits, since the shares of the Defendants were not specified therein, the learned Judge decided that the suit of the Plaintiff for the same abated as a whole. It may be mentioned that issue No. 5 was not contested by the learned Counsel for the Defendants. On these findings, the suit of Jiwan Singh was decreed for possesion of the land in dispute, excluding the share of Kahla Singh, Defendant. The claim of the Plaintiff regarding mesne profits however was dismissed.

Against this decision, Chanan Singh, Kaku Singh and Gurdit Singh, out of the Defendants, filed an appeal before the learned Additional District Judge, Bhatinda. He came to the conclusion that the trial Court was right in remarking that the suit of Jiwan Singh had abated only to the extent of Kahla Singh''s share therein and not as a whole. He further observed that the learned Subordinate Judge had ''curiously'' held under issue No. 4 that the suit as regards mesne profits abated in toto, but since no cross-objections had been filed by Jiwan Singh against his judgment, this finding of the trial Court had become final. The learned Judge was of the view that ''there should be no conflict of decision in the same suit and so in order to make the proceedings consistent and to avoid any conflict of decisions, it must be held that the suit as a whole abated even regarding the possession of the land''. He further held that the Plaintiff was the son of Sarupa and was, therefore, entitled to the land in dispute left by Arjan Singh deceased. As a result, he found that the suit of Jiwan Singh abated as a whole both with regard to the mesne profits as well as the relief regarding possession of the land in dispute. The appeal was, consequently, accepted and the suit of the Plaintiff was dismissed. Against this, the present appeal has been filed by Jiwan Singh, Plaintiff.

Learned Counsel for the Appellant submitted that after having found that the Plaintiff''s suit for possession had abated only qua the one-twentyfourth share of Kahla Singh, the learned Additional District Judge erred in law in dismissing the entire suit for possession on the ground that it would avoid any conflict of decision in the same suit, because the finding of the trial Court that the suit regarding mesne profits had abated in toto had become final as no cross-objections had been filed by the Plaintiff against the same.

In my view, there is merit in this contention. There will be no conflict of decision, because the trial Court had not found that the Plaintiff was not entitled to the mesne profits. All that it said was that the shares of the Defendants in Rs. 810/-, which were claimed as mesne profits, had not been specified and, therefore, by the death of Kahla Singh, who had also admittedly a share in this amount, and whose legal representatives had not been brought on the record within limitation, the entire suit regarding the recovery of Rs. 810/- had abated. Besides, the relief regarding possession of the land is quite different from that of the recovery of the mesne profits and the question of conflict of decision, therefore, will not arise.

Learned Counsel for the Respondents, however, contended that the Courts below were in error in holding that the suit had abated only qua the share of Kahla Singh. According to the learned Counsel, it abated in toto. He submitted that in a case where the Plaintiff claimed certain property on the basis of being an heir of the last male-holder, even if the share of the Defendants in the property in dispute were specified, the non-impleading of the legal representatives of one of them within time would result in the total abatement of the suit, the reason being that there would be two inconsistent decrees if only partial abatement was allowed in such a case. His further argument was that the Defendants in the present case were trespassers according to the Plaintiff and in the case of trespassers, there was always total abatement if one of the trespassers died and his legal representatives were not brought on the record within the prescribed period of limitation, unless, of course, the Plaintiff in the plaint specifically mentioned that that deceased trespasser was in possession of some specified portion in the disputed property.

After hearing the counsel for the parties, I find that there is no merit in these contentions. The principles governing the question whether there should be a total or partial abatement in a particular case have been very clearly stated by Chief Justice Shadi Lal in the Full Bench decision of the Lahore High Court in Sant Singh v. Gulab Singh I. L. R. 10 Lah. 7. This decision was followed in AIR 1935 853 (Lahore) . That was a case in which the Plaintiffs were claiming the property as heirs. While deciding that case, Din Mohammad J., with whom Young C. J. agreed, observed as under:

The principle enunciated in these authorities appears to be based on the assumption that the Plaintiff in such cases has a separate cause of action against every person who has a specified share in the property in dispute, and joins all such persons as Defendants in one suit, only because the ground of attack and defence being common, the law permits him to do so with a view to avoid multifariousness. Infact, he claims a separate relief against each one of them and if any one of them dies and his representatives are not impleaded, the Plaintiff loses his remedy against that Defendant alone and not against others. The test in such cases is whether the Plaintiff will be debarred from seeking his relief against those persons in a separate suit whom he does not join in the previous suit. If so, the suit or appeal would abate in toto in the circumstances mentioned above. If not the abatement will be limited to the share of those Defendants only who are not on the record. If a Plaintiff''s suit could proceed in their absence, there is no reason why it should be dismissed in toto if after their death, they ceased to exist on the record.

Applying the principle of law enunciated in the above two authorities, it is clear that the present suit does not abate in toto, because Kahla Singh''s share was definitely specified in the revenue records as one-twentyfourth. It may be mentioned that no authority taking a contrary view was cited by the learned Counsel for the Respondents. As regards the question whether the Defendants were trespassers in the present case, it may be stated that it is true that in the plaint it was mentioned that the Defendants had taken illegal possession of the property, but this was done by them in assertion of a title, namely, as the collaterals of the last male-holder. It was not as if they got into possession by force without any semblance of a title. Their case, therefore, is quite distinct from those who come into possession as trespassers. Reliance was placed by the learned Counsel on Raghu Sutar and Others Vs. Nrusingha Nath Thakur and Others, Roopchand Vs. Mithalal and Others, and Arunadoya Chakrabarty and Others Vs. Mahammad Ali and Others, . In the first two cases, the interests of the Defendants were joint and there was no specification of shares. These authorities are, therefore, clearly distinguishable. As regards the third, no question of abatement arose in that case. In the present case, the interests of the Defendants were not joint and indivisible and the share of Kahla Singh was one-twenty-fourth in the land in dispute. The suit for possession of land was rightly held to have abated qua his share only.

Learned Counsel for the Respondents, lastly, contended that the Defendants had become owners of the land in suit by adverse possession.

This plea was not specifically put in any issue, though in the judgment of the trial Court it had been discussed under issue No. 3 with regard to limitation. The learned Judge relying on the khasra girdawaris came to the conclusion that the Defendants got into possession of the land which was not under mortgage in kharif 2003. Bk , that is in 1946, and since the suit had been brought in 1957, therefore, they had not become owners by adverse possession. It may also be mentioned that this point was not taken by the Respondents before the lower appellate Court. As regards the land under mortgage, it was conceded by the learned Counsel for the Respondents that they had not become its owners by adverse possession.

In view of what I have said above, this appeal is accepted, the decree of the lower appellate Court is set aside and that of the trial Court is restored. In the circumstances of this case, however, I will leave the parties to bear their own costs throughout.