On death of Ambar Ali his legal heirs Sonahar Ali and Others vs Mukbul Ali and Others

Ram Labhaya, J.—This appeal arises out of a suit for declaration of title and khas possession. Plaintiffs sued for a declaration of their title to and possession of land measuring 1 B. 19 K. 15 Lechas of patta No. 35. The suit was resisted by two sets of defendants. It was decreed against both. The first three defendants claimed ownership on the basis of title derived by them from the vendor of the plaintiffs. Their title deeds came into existence after the sale transactions in favour of the plaintiffs. All three appealed from the decree.

During the pendency of the appeal one of the appellants died. The death occurred on 23-5-1950. No legal representative of this defendant was brought on the record within ninety days from the date of his death. Abatement occurred automatically on the expiry of the period of limitation provided for impleading legal representatives. Notwithstanding this oil 22-6-1953 the appellate Court allowed the appeal, and dismissed plaintiffs suit not only against the three appellants including the deceased but also against three others who had not appealed.

On behalf of plaintiffs-appellants it is urged that the appellate decree is a complete nullity. One of the appellants died. There was automatic abatement so far as he was concerned. There was no application for setting aside abatement; nor was actually this abatement set aside.

The result of this abatement was that the appeal became imperfectly constituted. All the necessary parties were not before the Court and therefore the appeal could not he heard and disposed of on the merits. There was total abatement and therefore on this appeal interference with the decree of the trial Court on the merits became impossible. The appeal had to fail as having abated. Mr. Ghose in support of his contention has relied on two decisions of this Court reported in Aravinda Sarma v. Payodhar Bama AIR 1950 Ass 53 (A) and Jognoram v. Dayaram Das AIR 1950 Assam 54 (B). These decisions fully support his contention.

The three appellants in the lower appellate Court were claiming title on the basis of title deeds which were executed in their favour jointly. There was no dispute between the defendants as regards their share and there was thus neither need nor occasion for determination of their shares Inter se. Title was jointly acquired and the suit was jointly resisted. The decree in favour of the plaintiffs against these 3 defendants was joint, the shares of the defendants not having been ascertained. After the death of defendant 1 these shared could not be ascertained. No ascertainment of shares between cosharers is possible in the absence of one or more of the cosharers.

All the cosharers have to be brought on the record before their respective shares can be determined. The decree in this case therefore was joint and also indivisible as after the death the ascertainment of shares was not possible. The abatement therefore would be entire, for this joint decree could not be set aside against two and allowed to stand against one who had died. This would give rise to conflicting decrees. In the circumstances there was no escape from the proposition that there was entire abatement and this appeal could not have been disposed of on the merits in the absence of the representatives of the deceased appellant.

Mr. Medhi, learned Counsel for the respondents has tried to support the decree of the lower appellate Court on the ground that it was possible for the Court by application of provisions of Order 41, Rule 4, Civil P.C. to set aside the decree not only against defendants who were appellants and before the Court but also against the deceased defendant-appellant. He urges that the decree proceeded on a ground common to all the defendants and that one of the defendants could appeal from the order of the decree and on his appeal the Court could reverse or vary the decree in favour of all the defendants.

He urges that it should make no difference that the appeal was filed by all the three and they did not initially take advantage of the provisions of Order 41, Rule 4. This contention is not new. It has been considered in both the decisions of this Court to which reference has been made above. The contention was then'' examined fully. There is undoubtedly considerable divergence of judicial authority on the point. There are decisions which support the view of Mr. Medhi. All these decisions were given before the, Division Bench decision reported in AIR 1950 Assam 53 (A). The view which prevailed in them was fully considered. A Division Bench of this Court of which I was a member followed the view enunciated in the Pull Bench decision reported in Ramphal Sahu and Others Vs. Babu Satdeo Jha and Another,

Mr. Medhi has referred to some decisions given before 1953 and has pressed for a reconsideration of the matter. No new authority after the Division Bench decision of this Court has been cited.

No new point bearing on merits of the controversy has been raised. In the absence of any new argument or reason, there would be no justification for a reference to a larger Bench for reconsideration of the case. Mr. Medhi in these circumstances cannot be said to have succeeded in making out any case for reconsideration of the view which affords a complete answer to his contention.

Order 41, Rule 4 does no doubt permit a plaintiff or a defendant to appeal from the whole decree where it proceeds on a ground common to all plaintiffs or all defendants and in such a case the Court may reverse or vary the decree in favour of all the plaintiffs or all the defendants. It is a question whether the decree can be varied in favour of all the plaintiffs or all defendants who are not parties to the appeal or are not before the Court.

We have not been addressed on this point and we would express no opinion on this question. But as I observed in the decision in AIR 1950 Assam 53 (A) Order 41, Rule 4 does not override the provision of Order 22, Civil P.C., even if a party may take advantage of Order 41, Rule 4 and may file an appeal on a ground common to others with him who did not join him. But if advantage is not taken and if all defendants against whom a decree has been passed on a ground common to all join in the appeal I do not see how they can claim an exemption from the operation of the provision contained in Order 22. That Order applies to appeals and there is no exception in favour of appeals falling under Order 41, Rule. 4. If then one of those who have appealed jointly dies, the immediate consequence would be abatement of the appeal so far as he is concerned.

Mr. Medhi had no way out of the difficulty, so far as the deceased appellant was concerned and if the appeal of that defendant abated, the consequence of the abatment in regard to others would also be unavoidable. I can think of no reason why these persons who jointly appealed should not be bound by the provisions of Order 22, which have been expressly made applicable to appeals.

One reason for permitting one or more plaintiffs or defendants to file an appeal against a decree where it proceeds on a common ground to all plaintiffs or defendants is to prevent contrary or conflicting decisions on the same point in one suit. If the whole of the decree is not set aside when it proceeds on a ground common to all there would be conflicting decrees. This purpose may be defeated if the appeal is allowed to abate against one defendant who has died and is permitted to be prosecuted so far as the others are concerned. The result again would be contradictory decrees.

It would be reading something into Order 41, Rule 4 to say that any automatic abatement that occurs on the death of one of the appellants could be ignored or overlooked or even set aside by virtue of the provision contained in it. This provision in my opinion should apply only to properly Constituted appeals, when the provisions of Order 22 create no difficulty in the prosecution of the appeals.

After fully considering the argument addressed by Mr. Medhi, I still adhere to the view expressed in the two cases of this Court and see absolutely no justification for a reference of the question to a larger Bench of this Court. As a result of this, view this appeal must succeed. It is therefore allowed. The decree of the lower appellate Court is set aside and that of the trial Court restored. Plaintiffs shall recover their costs of the entire litigation from the contesting defendants.

Sarjoo Prosad, C.J.

I agree.