Kali Ram and another vs Mauji and another

P.C. Pandit, J.—A preliminary objection has been raised ay the Learned Counsel for the respondents that this appeal has abated.

Mauji and Molar, who were cousin brothers, were in joint cultivation of the land in dispute measuring 10 Bighas 18 Biswas situate in village Pipli Khera, District Rohtak. Their case was that they had acquired occupancy rights in the said land although they were not recorded as such in the revenue records. On 9th of February 1959, Kali Ram and Bhola who were the owners of this land moved the Assistant Collector, Sonepat, for the ejectment of Mauji and Molar u/s 14-A of the Punjab Security of Land Tenures Act. The order of ejectment against them was passed by the Assistant Collector on 4th of June 1959 and in pursuance of that order, they were actually ejected. Being aggrieved, they brought a suit in March 1960 against Kali Ram and Bhola for a declaration that they had acquired occupancy rights in the said land had become owners thereof by virtue of the provisions of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1953. It was also claimed that the order of the Assistant Collector was illegal, unenforceable and not binding on them. By way of consequential relief the plaintiffs also sought a decree for possession of the said land. The trial court held that the plaintiffs had not acquired occupancy rights in the land in suit when the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act of 1953 cams into force and the suit was, consequently, dismissed. When the matter went in appeal before the learned Senior Subordinate Judge, Rohtak, he found that the plaintiffs had acquired occupancy rights only in a portion of the land in dispute, with the result that he partly accepted the appeal and modified the judgment and decree of the trial court and granted the plaintiffs a decree for possession of 15 Kanals and 13 Marias out of the land in dispute. Against this decision, the defendants filed an appeal in this Court praying that the plaintiffs suit should have been dismissed in its entirety.

During the pendency of the appeal in this Court, Molar, respondent No. 2, died on 22nd July, 1964 and his property was mutated in favour of his legal heirs on 6th May 1965, as would be evident from the mutation order produced in this Court. No application for bringing his legal representatives on the record has, however, been made by the appellants. It is not disputed that in view of the provisions of Order XXII, Rules 4 and 11, the appeal abated against Molar, deceased, respondent No. 2. The question for decision is whether the appeal can proceed against Mauji, respondent No. 1, in the absence of the legal representatives of Molar.

As pointed out by The State of Punjab Vs. Nathu Ram, it is only when it is not possible for the court to deal with the matter in controversy so far as regards the rights and interests of the appellants and respondents other than the deceased respondent, that it will have to refuse to proceed further with the appeal and, therefore, dismiss it. In this very connection, the learned Judge has further observed thus:

The question whether a Court can deal with such matters or not, will depend on the facts of each case and therefore no exhaustive statement can be made about the circumstances when this is possible or is not possible. It may, however, be stated that ordinarily the considerations which weigh with the Court in deciding upon the question are whether the appeal between the appellants and the respondents ether than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the Court. The test to determine this has been described in diverse forms. Courts will not proceed with an appeal (a) when the success of the appeal may lead to the Court''s coming to a decision which be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the Court''s passing a decree which will be contradictory to the decree which had become final with respect to the same subject matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respondents, alone who are still before the Court and (c) when the decree against the surviving respondents, if the appeal succeeds be ineffective, that is to say, it could rot be successfully executed.

In a later decision of the Supreme Court in Sri Chand v. M/S Jagdish Parshad Kishan Chand AIR 1966 S.C. 1427, it was pointed out that the three tests suggested by Raghubar Dayal, J. in Nathu Ram''s case were not cumulative tests. Even if one of them was satisfied the Court might, having regard to all the circumstances hold that the appeal had abated in its entirety.

In the instant case, a joint and indivisible decree had been passed in favour of the respondents. They were jointly in cultivation of the land in dispute. They were ejected by the order of the Collector, which was jointly challenged by means of this suit in which they claimed a joint declaration that they bad acquired occupancy rights in the said land and had become owners thereof by virtue of the provisions of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act. It cannot be said which precise portion of the land was being cultivated by the deceased and which by Mauji. The declaration given by the lower appellate court to the respondents with regard to a portion of the land in dispute cannot be split up. The decree under appeal does not mention the shares of the two respondents and, consequently, the legal representatives of Molar in whose favour the decree passed by the lower appellate court has become final, since they were not impleaded as respondents in place of the deceased, could execute the entire decree. If, the appeal is accepted against Mauji, this Court would be passing a decree which would be contradictory to the ''decree which had become final with respect to the same subject matter between the appellants and the deceased respondent It was argued by the Learned Counsel or the appellants that the shares of Mauji and Molar were defined, namely, both of them had one half share each in the land in question and in this connection he referred to the entires in the Jamabandis, Exhibits P-l and P-2. Such an argument was repelled by Raghubar Dayal, J. in Nathu Ram''s case by observing :

Different views exist in the case of joint decrees in favour of respondents whose rights in the subject matter of the decree are specified. One view is that in such cases, the abatement of the appeal against the deceased respondent will have the result of making the decree affecting his specific interest to be final and that the decree against the other respondents can be suitably dealt with by the appellate Court. We do not consider this view correct. The specification of shares or of interest of the deceased respondent does not affect the nature of the decree and the capacity of the joint decree-holder to execute the entire decree or to resist the attempt of the other party to interfere with the joint right decreed in his favour. The abatement of an appeal means not only that the decree between the appellant and the deceased respondent has become final, but also, as a necessary corollary, that the appellate Court cannot, in any way, modify that deceree directly or indirectly. The reason is plain. It is that in the absence of the legal representatives of the deceased respondent, the appellate Court cannot determine anything between the appellant and the legal representatives which may affect the rights of the legal representatives under the decree. It is immaterial that the modification which the Court will do is one to which exception can or cannot be taken.

Moreover, as held in this very decision, the mere record of specific shares in the revenue records was no guarantee of their correctness The appeal court would have to determine the share of Mauji and necessarily the share of Molar in the absence of his legal representatives. This according to the Supreme Court authority, was not permissible in law.

In view of what I have said above, it has to be held that the appeal cannot proceed in the absence of the legal representatives of Molar deceased, with the result that it has to be dismissed as having abated. In the circumstances of this case however I will make no order as to costs.