1. This appeal is by the third defendant in a suit filed by the plaintiff-first respondent herein, against the order dated 19-12-1973 of the Civil Judge, North Kanara at Karwar. The plaintiff brought the suit claiming that himself and defendants 1 and 2 were co-owners of Sy. No. 56 of Husari village and that he was entitled to 5/16th share. Defendants 1 and 2 did not deny the claim of the plaintiff. The plaintiff's claim against the third defendant was that he was a trespasser. Defendants 1 and 2 stated that they along with the plaintiff had leased out the land to the third defendant. Upon this the suit was decreed. In appeal the judgment and decree were set aside and the case was remanded. During the pendency of the suit after remand the first defendant died on 22-12-1972. A memo was filed by the second defendant on 3-4-1973 to that effect. Even then, the plaintiff did not make an application to bring the legal representatives of the first defendant on record. When the case was posted on 19-4-73 the impugned order was passed. It reads as follows :
'Plaintiff is absent. His Advocates are not present. So far no application to bring L.Rs. of deceased defendant No. 1 filed. The defendant No. 1 is reported to be dead on 22-12-1972. Three months have elapsed. The suit is for partition and possession. So the suit abates in whole.....'
Against this order, an appeal was filed in Regular Appeal No. 149/73 in the court of the Civil Judge, Karwar. The learned Civil Judge on the question whether the suit was wholly abated or not, came to the conclusion that the suit as a whole did not abate but only as against the first defendant. It is this order that is questioned in this revision petition.
2. Mr. Tarakaram, learned counsel for the third defendant, contended that there was a joint claim against all the three defendants made by the plaintiff in the suit and on the death of one of the defendants, his legal representatives were not brought on record and so the whole suit, as held by the Munsiff, abated. He relied on the decision in Babu Sukhram Singh v. Ram Dular Singh : AIR1973SC205 . In that case the facts were that the plaintiff had asked for a permanent injunction against 39 defendants directing them to demolish the construction in dispute within the time fixed by the court. He further sought a direction from the court against all the defendants to fill up the pits and nallahs on the land mentioned in item (B) of the plaint. In the alternative he wanted the work in question to be done through the Court Amin at the cost of the defendants. The second prayer made by him was for a decree for possession of the disputed lands against all the defendants. The trial court dismissed the suit in its entirety. The first appellate Court partly allowed the appeal and decreed the suit in part against all the defendants. On a further appeal being taken to the High Court, the High Court allowed the appeal of the defendants and dismissed the suit. Against the judgment of the High Court the plaintiff went to the Supreme Court. During the pendency of the appeal before the Supreme Court some of the defendants died. Their legal representatives were not brought on record within the time prescribed. Thereafter the plaintiff applied to the Supreme Court for setting aside the abatement and impleading the legal representatives of the deceased defendants. That application was dismissed. The question before the Supreme Court was whether the appeal had abated or not. Dealing with that question the Supreme Court held that no separate claim was made against all the defendants. Under these circumstances, quite clearly the appeal had abated as a whole under Order XXII, Rule 4 of the Civil Procedure Code.
3. In the present case the claim made by the plaintiff is that he is a co-sharer with defendants 1 and 2 in the suit property and is entitled to 5/16th share. That claim is admitted by defendants 1 and 2. The claim against the third defendant is that he is a trespasser and so plaintiff is entitled to the possession of his share from him. Quite clearly, the facts in this case are different from the facts in the Supreme Court case. The claim against the defendants is not the same. In other words, the claim against all the defendants is not the same. The claim of the plaintiff has been conceded by defendants 1 and 2 that he is entitled to 5/16th share. The death of one of the defendants does not necessarily result in the abatement of the suit in its entirety. Having regard to the character of the suit the suit could proceed in the absence of the first defendant. In Sant Singh v. Gulab Singh, AIR 1928 Lah 572, the Full Bench of the Lahore High Court dealt with a case similar to the one in question. The facts were that X sold immovable property to A, B, C and D. In the sale deed it was stated that the properties had been sold to the vendees in equal shares. The reversioners of the vendor instituted a suit for a declaration that the sale should not affect their reversionary rights after the vendor's death. The suit was dismissed and the plaintiff appealed. During the pendency of the appeal A, one of the vendees, died and his legal representatives were not brought on record within time, the appeal abated as against A. The Full Bench held that the abatement of the appeal as against A did not result in a dismissal of the appeal in its entirety.
4. That being the position, the decision of the appellate court, in my opinion, is correct, and I see no reason to interfere with the same.
5. In the result, the appeal is dismissed. No costs.
6. Appeal dismissed.