Meruji Vakhtaji and Others vs Kanaji Vakhtaji and Others

Chhatpar, J.—This second appeal arises out of the following facts: The present Appellants represent five branches of Bhagdars who along with the Respondents who represent the sixth branch are the owners of village named Sonardi. The Appellants have consequently five parts and the Respondents one part in the village lands. The dispute between the parties relates to a ''Kheta'', described in the plaint as ''Avedia''. The Appellants filed a suit against the Respondents claiming that this Khetar was a joint property of the parties and was reserved for grazing cattle and that the Defendants in cultivating the land had exceeded their right of enjoyment as joint owners; consequently the Plaintiffs claimed an injunction restraining the Defendants from cultivating the field and also claimed mesne profits. The trial Court gave a decree to the Plaintiffs for injunction as prayed and for Rs. 20/ - as nominal damages. From this decree the Defendants filed an appeal. The appellate Court reversed the decision of the trial Court and dismissed the suit of the Plaintiffs holding that the Defendants were the exclusive owners of the field in question and the right of pasture claimed by the Plaintiffs was not established. From this decree the Plaintiffs have filed the present appeal to this Court.

A preliminary point has been raised by Mr. Pandya the learned Advocate for the Appellants that the appeal before the lower appellate Court had abated by reason of the death of one of the Appellants in the lower Court, his legal representative not having been brought on the record, although such legal representative has been made a party to the present appeal by the Plaintiffs. It appears that Rahu Narsangji the third Appellant in the lower appellate Court had died on 28-2-50 or 1-3-50. The advocates appearing in the lower appellate Court seemed to be unaware of this fact and they proceeded with the hearing of the appeal without joining his legal representative, and the learned District Judge of the lower appellate Court gave judgment on 12-7-50. The present appeal to this Court has been filed on 9-10-50, wherein the legal representative of Rahu Narsangji has been joined as the third Respondent. The learned Advocate for the Appellants contends that as the appeal in the lower Court should be deemed to have abated so far as the third Appellant Rahu Narsangji was concerned, the appeal also abated as a whole and that the decree passed by the lower appellate Court was a nullity. He therefore, prays that this Court should set aside this decree and either maintain the order of the trial Court decreeing the suit of the Plaintiffs or send the case back to the lower appellate Court to deal with the appeal as it thinks fit. In support of his argument he has relied upon Order 22 Rule 3 of the CPC relating to abatement and has cited in support the rulings given in -- AIR 1949 91 (Nagpur) ; -- K. Balakrishna Patro and Others Vs. C. Balu Subudhi and Others, ; -- Ghulam Muhammad Syed Khan v. Sherdil Khan Bano Khan AIR 1942 Sind 157 and -- Ramphal Sahu and Others Vs. Babu Satdeo Jha and Another, . On the other hand Mr. Joshi, the learned Advocate for Respondents Nos. 1 and 2, has relied upon the specific provisions of Order 41, Rule 4 read with Rule 33, Code of Civil Procedure, and has argued that the death of one of several Appellants in a case where the decree appealed from proceeds on a ground common to all of them does not matter and the surviving Appellants can prosecute the appeal and obtain a judgment which would enure for the benefit of the deceased Appellant as well, and in support of this contention he has relied upon the rulings of the Calcutta, Bombay, Madras, Lahore and Allahabad High Courts which are referred to in Chitaley and Rao''s CPC 1951 Edition at page 3296. I may mention particularly the cases of -- Halima Khatun and Others Vs. Sashi Kumar Banik, ,-- Dhondo Khando Vs. Waman Balwant, and -- Shripad Balvant Kasture Vs. Nagu Kushaba Kate, which support the Respondents'' contention. I need not discuss the rulings in detail, but content myself by stating that I agree with the views of the Bombay, Madras, Allahabad and Calcutta High Courts as in the present case the Appellants in the lower Court were the Defendants against whom the relief claimed was for injunction. I, therefore over-rule this preliminary objection and hold that the judgment of the lower appellate Court enures for the benefit of all the Appellants in the lower Court. Mr. Pandya has further cited a ruling of the Bombay High Court in the case of -- Amarsangji Indrasangji Vs. Desai Umed, and argued that the decree of the lower appellate Court was a nullity; but this Bombay case was one of a sole Defendant appealing and dying before the appeal was heard. It is settled law that when a sole Plaintiff or a sole Defendant dies and his legal representatives are not brought on the record and the Court proceeds to a judgment in ignorance of the death of such Plaintiff or defend ant, the decree passed by the Court is a nullity. But this principle does not apply in cases where there are more than one Plaintiff or more than one Defendant. In such cases if the surviving parties can proceed or be proceeded against, the decree cannot be considered as a nullity. In the case of an appeal, we have the specific provision contained in Order 41, Rule 4, which gives the right to one of the Plaintiffs or the Defendants to appeal from the whole decree and the Court has power to reverse or vary the decree in favour of all the Plaintiffs or Defendants. This ruling of the Bombay High Court has, therefore, no application to the present case, since the surviving Appellants in the lower appellate Court were entitled to prosecute the appeal and obtain a judgment which would enure for the benefit of the deceased Appellant as well, as the trial Court''s judgment proceeded on a ground common to all the original Defendants.

Coming to the merits of the case, it appears that.the Plaintiffs had based their cause of action for the relief of injunction and damages on the ground that they were joint owners of the field in question along with the Defendants and which was reserved for pasture and that for over 50 years before the suit, the field was never cultivated by the Defendants and was in fact used as a common grazing ground by the inhabitants of the village. They had clearly not based their right of grazing on any right of easement. Reading the plaint, the written statement and the rejoinder filed by the Plaintiffs, it appears to me perfectly clear that the Plaintiffs never had in their contemplation to claim the right of grazing on the basis of easement or on any other right except that of joint ownership with an implied understanding or an agreement that the field was to be reserved for common grazing and not to be cultivated by anybody. The learned District Judge of the lower appellate Court, however, made out a further ground for the Plaintiffs'' claim upon his interpretation of issue No. 6 in the case, which he construed as including a plea of a customary right to graze cattle. The learned District Judge observed:

No such customary right is pleaded in the plaint. No such right is specifically put in issue. But the issue is worded in such a manner that it would be necessary to consider this question also. Issue No. 6 is as follows: ''Whether it is proved that the field in dispute belonged to all the Giras-holders of the village and whether it was reserved as a grazing ground for the whole village for a number of years.'' The issue being so worded, I proceed to consider this question also.

His finding on the latter part of the issue was that such customary right of grazing was not established.

Previous to the present litigation, there was a suit filed in the year 1896 A.D. (Suit No. 383 of Smt. year 1945), by the predecessors-in-title of the present Defendants against the predecessors-in-title of the present Plaintiffs, wherein it was alleged that the Defendants in that case were claiming that the field in question was joint property and were interfering with the right of the Plaintiffs to cultivate it and that the Defendants should consequently be restrained by an injunction. The Defendants in that case pleaded that the field, was joint property and kept as ''Dharmada'' for the purpose of cattle grazing etc. The Court decided in favour of the Plaintiffs in that case and held that the field belonged exclusively to them. This decree was consequently pleaded as res judicata by the Defendants in the present case. The Plaintiffs attempted to defeat this plea by contending, firstly, that the parties in the two suits were not the same, as in the present case the Plaintiffs were suing in a representative capacity on behalf of the whole village, and secondly that the. field in dispute in the prior suit was not the same as the one in the present litigation. The District Judge over-ruled both these objections holding that the present suit though in a representative capacity was not on behalf of the inhabitants of the whole village but that the heads of the five branches of the Bhagdars alone filed the suit on behalf of all the Bhagdars, who were too numerous and that the representative capacity extended only to the Bhagdars. On the second ground he held that the field, although mentioned by different names in the two proceedings, was in fact the same.

Mr. Pandya the learned Advocate for the present Appellants has urged these contentions before me again. It is clear beyond all doubt by reading the plaint that the present Plaintiffs were filing the suit only on behalf of. the Bhagdars of the five branches and the representative character of the suit was limited to that extent only. Such being the case, it cannot be said that the parties to the litigation of 1896 in which all the five branches were ranged as Defendants were not the same, and so far as the second ground of the identity of the field is concerned, the judgment in the prior suit makes it perfectly clear that the field ''Akodia'' referred to in the prior suit was the same field ''Avedia'' in the present suit. As a matter of fact, in some proceedings in the prior litigation, the field has been described as ''Akodia Urfe Avedia'' which means ''Akodia'' alias ''Avedia''. However, the finding of identity as to the field is one of fact and the judgment of the lower appellate Court would be binding upon me. As the plea of res judicata operates in favour of the Defendants, the Plaintiffs case so far as it is based upon joint ownership fails.

I now tackle the most important issue in the case about the alleged right of grazing claimed by the Plaintiffs. Now such a right can be established as an easement if it appertains to the ownership of a certain land u/s 4 read with Section 15 of the Indian Easements Act. Illustration (d) to Section 4 makes it clear that an owner of a certain house or farm can acquire the right to graze his cattle over the land of Anr. person, and such a right would be in the nature of an easement. But Section 15 which deals with the acquisition of such a right requires enjoyment for the statutory period of 20 years as of right and without, interruption. The Plaintiffs were admittedly part owners of the lands in the villages, but such a claim based upon the right of easement was not claimed in the plaint. There was evidence that even after the decree of 1896, the field in question remained uncultivated and was generally being used by the villagers as a grazing ground; the learned District Judge has observed that at least for nearly 50 years the field in fact was being used as a grazing ground. But for the acquisition of the right as an easement, it is necessary that the enjoyment should (sic) med the right on the basis of easement, the Defendants might have led evidence to show that the grazing was permitted by leave and licence of the Defendants or that it was not continuous and there were interruptions within the meaning of the Explanations to Section 15 of the Art. I do not think it proper to allow this plea being made out before me. I consequently rule out of consideration the contention of the learned Advocate for the Appellants that the Plaintiffs had acquired the right of grazing as an easement by prescription.

The second question to be considered is the customary right claimed u/s 18. Their Lordships of the Privy Council in the case of -- Lakshmidhar Misra v. Rangalal 52 Bom L.R. 458 (P.C.) considered certain incidents of a customary right. One of the ingredients of establishing a custom is that it should be ancient. In the present case the very existence of the decree in the suit of 1896, wherein the right to graze was directly in issue, negatives a customary right. It cannot be said that from times immemorial the inhabitants of the village have been grazing cattle on the field in question by custom when such a right was the subject- matter of litigation and the Court held that there was in fact no such right and declared the field to be of the exclusive ownership of the Defendants in the present case. Therefore, although there is evidence to the. effect that for nearly 50 years the field in question has remained uncultivated and was being used for purpose of grazing cattle, such user cannot under the circumstances lead to establishment of a custom, as the decree of the Court establishes the exclusive right of the Defendants and it is inconsistent with the alleged customary right. I consequently hold that there is no substance in this contention of the learned Advocate for the Appellants.

No other ground is urged before me for attacking the judgment of the lower appellate Court. The result is that this appeal fails and is dismissed with costs.