M. Sadananda Swamy, J.
1. The appellant is the second defendant and respondents are the plaintiffs. The first defendant is the owner of the land survey No. 371/1 and the second defendant is the owner of the land to the west of it. namely, survey No. 377/3. The plaintiffs are the owners of lands which lie to the North. The case of the plaintiffs is that there is a path-way leading from the village which is to the south of the lands of the defendants as well as the lands of a number of other persons; that the pathway enters the land survey No. 371 at its south-eastern point marked as 'F' in the plaint sketch and runs along the south-eastern boundary of the said land to the point 'G' which is the southwestern point. Thereafter, the pathway runs north-west along the common boundary between the lands of the two defendants and reaches the lands of the plaintiffs to the north. The plaintiffs allege that the defendants had dug trenches in their lands to obstruct the said passage. They filed the suit alleging that they had acquired an easementary right of way by prescription. According to them, the way or passage is 8 ft. in width. The defendants filed separate written statements. They both denied the alleged right of way claimed by the plaintiffs,
2. The 1st defendant stated in his written statement that in order to protect his land, he has dug up a trench on the western strip of his land and that he is doing so since the last many years. Similarly, the second defendant stated that he had dug up a trench in a part of his own land but that the plaintiffs have no right to question the same.
3. The trial Court held that the plaintiffs had established their right of way along F.G.H.I. as shown in the plaint sketch as an easement by prescription and that the right of way is about 8 ft. in width. The trial Court noticed that the first defendant has admitted in his evidence that he dug up the trench four years ago in R. S. No. 371/1 and that the second defendant also did so. The trial Court, therefore, held that the defendants ere bound to restore the passage by filling up the trench and make it useable as a passage by the plaintiffs. It accordingly decreed the suit directing the defendants to close the pit or trench dug up by them in between their lands R. S. Nos. 371/1 and 377/3 and restore the passage to its original position. It also granted an injunction restraining the defendants from obstructing the use of the pathway by the plaintiffs.
4. Both the defendants 1 and 2 appealed. During the pendency of the appeal in the lower appellate Court, the first defendant died but no attempt was made to bring on record his legal representatives. The lower appellate Court relying on the decision in : 3SCR549 held that the appeal cannot be proceeded with on behalf of either appellant and without going into the merits of the appeal, dismissed it. The second defendant has come up in appeal.
5. It is contended by Mr. Sirgurkar on behalf of the appellant, that the lower appellate Court was in error in dismissing the appeal. His contention is that it was possible for the lower appellate Court to deal with and decide the appeal of the second defendant in spite of the fact that the appeal abated as far as the first defendant is concerned. His contention is that though the plaintiffs allege that a trench has been dug up by both the defendants to obstruct the suit passage which runs along the common boundary of the lands, the each of defendants has dug up a trench in a portion of his respective land, and that the cause of action against each of the defendants is distinct and separate. On the other hand, Mr. K. I. Bhatta. appearing on behalf of the respondents, has contended that according to the case of the plaintiffs, the defendants acted in collusion and dug up the trench to obstruct the suit passage and that therefore, the appeal could not proceed on behalf of the second defendant after the death of the first defendant in the lower appellate Court.
6. Mr. Sirgurkar has relied on the decision of the Supreme Court in : 2SCR636 (State of Punjab v. Nathuraml and has contended that according to the tests laid down in that decision, the appeal of the second defendant in the lower appellate Court could be proceeded with. It has been observed in the said decision that the question whether a court can proceed with the appeal or not will depend on the facts of each case and that no exhaustive statement could be made about the circumstances under which it is possible to do so or not. Three tests have been laid down in that decision to decide whether a court can proceed with an appeal or not. and it cannot do so in the following cases:--
'(a) When the success of the appeal may lead to the court's coming to a conclusion which would 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) end
(c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective, that is to say. it could not be successfully executed.'
In that case a land belonging to two brothers jointly was acquired. A joint award was passed. During the pendency of the appeal, one of the brothers died and his legal representatives were not brought on record, and the appeal by the State Government abated as against him. It was held that the subject-matter for which compensation had been awarded was one and the same land and the assessment of compensation so far as the deceased brother having become final there could not be different assessments of compensation for the same parcel of land and that therefore the appeal could not be proceeded with against the surviving brother.
In : 3SCR549 (Rameswar Prasad v. Shyam Beharilal) nine persons instituted a suit for ejectment and recovery of rent against two defendants alleging that the first defendant was the tenant who had Sub-let the premises to the second defendant. The suit for ejectment was decreed against both the defendants. On appeal by the second defendant. the District Judge set aside the decree for ejectment against defendant 2 and confirmed the decree against defendant 1. The nine original plaintiffs filed the second appeal in the High Court. One of the plaintiffs-appellants died and the appeal abated so far as he was concerned as no application for bringing his legal representatives on record was made within the prescribed time. The High Court dismissed the appeal holding that the interests of surviving appellants and the deceased appellant were joint and indivisible and that hi the event of the success of the appeal, there would be inconsistent and contradictory decrees. The decision of the High Court was confirmed holding that the appeal of the surviving appellants could not be heard as all the appellants had a common interest and right in getting the decree for ejectment against the second defendant, that such a decree could have been on a ground common to all of them, and that the second defendant could not be ejected from the premises when the basis that the deceased appellant, one of the persons having joint interest in letting out the property. could not have ejected him. It was further observed that it was not possible for the defendant to continue as tenant of one of the landlords and not as a tenant of the others, when all of them have a joint right to eject him as their tenant.
7. In : 2SCR830 (Union of India v. Shree Ram) two persons claiming to be karthas of a joint Hindu family, filed a suit for damages. The suit was decreed. During the pendency of the appeal filed by the defendant, one of the plaintiffs died and his legal representatives were not impleaded in time. In the appeal before the Supreme Court. It was not disputed on behalf of the appellant that in case the appeal abated against the heirs of the deceased plaintiff-respondent it would become incompetent against the surviving respondent. It was held, following the decision in : 2SCR636 that the decree being Joint and indivisible, the appeal against the surviving respondent could not proceed as it had abated against the deceased respondent,
8. In AIR 1966 SC 1427 (Sri Chand v. Jagdish Pershad) three persons stood sureties for the satisfaction of a decree which might be passed by executing an unregistered bond. The plaintiff in the suit sought to execute the decree obtained by him in the suit against the sureties by enforcing the surety bond. The objections of the sureties were overruled by the executing Court and the order was upheld by the High Court in appeal. The sureties appealed to the Supreme Court by Special leave and one of the appellants-sureties died without his heirs being brought on record within the time prescribed under the Supreme Court Rules and the appeal abated so far as the deceased appellant-surety was concerned. It was held that the appeal had abated in its entirety following the decision in Nathuram's case : 2SCR636 . It was further pointed out that the three tests suggested in Nathuram's case are not cumulative tests and that even if one of them is satisfied, the Court may hold that the appeal has abated in its entirety.
9. Mr. Sirgurkar next relied on the decision in AIR 1926 Cal 193 (Gopika Raman Roy v. Atal Singh). In that case, pending an appeal by the plaintiff-landlord in an indictment suit against several defendants. some of the defendants died and thereafter the legal representatives were not brought on record in time. But the defendants were in possession of distinct plots of land. It was held that the whole appeal did not abate but that the claim with regard to plots in the possession of the deceased defendants only should be dismissed. He next relied on the decision in AIR 1959 Mys 194. (Mallan Gowda v. Gavisiddan Gowda). In that case two reliefs were claimed by the plaintiff--one for specific performance of the contract of sale against defendants 1 to 5. and the other for recovery of possession from defendant 6. The 6th defendant died and the appeal abated as against her. It was hold that since the reliefs prayed for were distinctive there was no possibility of a joint decree against all the defendants and that the appeal did not abate against the surviving respondents.
10. Mr. K. I. Bhatta, learned counsel for the respondents, contended that the decree in the present case directs both the defendants to restore the passage to its original position and that the decree is a joint decree. He also submitted that if the appeal of the second defendant Is to succeed there will be a conflict of decisions, that the case of the plaintiffs is based on the common ground, namely, the existence of a single path-way and that the defence of both the defendants is that there is no such path-way. He also contended that the decree directs the restoration of the entire passage and if the second defendant succeed? in the appeal the entire passage will not be restored and in that respect there will be a conflict of decisions. He further contended that if the second defendant succeeds in the appeal the decree of the trial Court cannot be executed against the legal representatives of the first defendant. He relied on the following decisions;
In : AIR1953Cal588 . (Hakir Mohamed v. Abdul Majid) it has been held that if one of the defendants trespassers dies and -- suit abates in regard to the other co-trespassers who had participated in the trespass. An earlier decision of the same Court was followed, the judgments and decrees of the Courts below were set aside and the plaintiffs were held at liberty to bring a fresh suit on the same cause of action.
In : AIR1961Pat240 . (Govind Lal v. Bandhu Ranikahar), the plaintiff claiming to be a raiyat of certain land sued defendants for damages as wrongdoers alleging that they forcibly removed the crop from the said land. The trial Court held that the plaintiff was not a raiyat. During the pendency of the appeal by the plaintiff one of the defendants died and Ms representatives were not brought on record. It was held that if the appeal is allowed to proceed on merits and if the Court comes to the conclusion that the plaintiff is a raiyat such a finding would he in conflict with the finding of the trial Court and that therefore the appeal could not be proceeded with against the other respondents. The defendants were considered to be Joint tort favors and the decision in (1921) 62 Ind Gas 714 (Cal) was followed. The basis of the decision appears to be that the decree was a joint decree against all tort favors.
In : AIR1964Ori39 . (Lakshmi Charan Panda v. Satyabadi Behera) the suit was brought for ejectment and permanent injunction against the defendants who were all characterised as joint tort favors. The suit was dismissed and the decision was confirmed in first appeal. During the pendency of the second appeal by the plaintiff one of the defendants died and his legal representatives were not substituted. It was held that the entire appeal abated. The basis of the decision was that if the decree is set aside in favour of the appellants so far as the other respondents are concerned it will lead to two inconsistent decrees. The earlier decision of the same Court in : AIR1963Ori140 was followed.
In 1968 Andh WR 342 (Subba Rao v. Satyayya), the suit was filed for a declaration that the suit property belonged to the plaintiffs, for recovery of possession after electing the defendants, for an injunction directing the defendants to put up the boundary bund of one foot width and also for restraining them from interfering with the plaintiffs' enjoyment of the same. The trial Court decreed the suit. Three of the six defendants appealed. During the pendency of the appeal one of the defendants died. The decision of the Supreme Court in Nathu Ram's case was followed. It was held that the decree of the trial Court was a joint decree and that the entire appeal abated. It may be noticed that the subject-matter of the suit was one and the same property and the contention of the defendants in that case was that the suit land was being enjoyed by the defendants as a common land. The allegation in the plaint was that the defendants had jointly encroached upon the suit land.
In , (Roopchand v. Mitbalal). a suit was filed for recovery of possession of a land against two joint trespassers a father end son. It was dismissed. During the pendency of the plaintiff's appeal the father died leaving behind him six sons of whom only one was on record. But the other sons were not brought on record. The sons were in joint possession of all the immovable properties and the son impleaded as a defendant was not the eldest son. It was held that the success of the appeal will result in two inconsistent decrees or in the emergence of a decrees which will be rendered futile by the other persons in possession who were not properly before the Court. It was therefore held that the appeal abated as a whole. It is to be noticed that the defendants in that case were not in possession of separate or distinct portions of the land.
In : AIR1968AP47 (State of Hyderabad v. Mohammed Afzal) certain properties were acquired by Government. During the pendency of the appeal on behalf of the State two of the six respondents-claimants died and the appeal abated against them. The decision of the Supreme Court in Nathu Rain's case was followed and it was held1 that the whole appeal abated. It was also held that the interest of the respondents was joint and indivisible and that there would be two inconsistent decrees in the same case with respect to the same subject-matter in case the appeal succeeded. It was further held that since the subject-matter of the compensation is the same the amount of compensation awarded could not be varied in the absence of any one of the joint owners of the land before the Court
11. Except the two decisions of the Andhra Pradesh High Court relied on by the learned counsel for the respondents and the decision in : AIR1964Ori39 , the other decisions were rendered before the decision in Nathu Ram's case : 2SCR636 . The decision in Nathu Ram's case has not been noticed in : AIR1964Ori39 . The decisions relied on by the respondents relating to joint tort favors proceeded on the basis that there is a joint decree against the tort favors and that the same cannot be varied in the absence of one of such tort favors before the Court.
12. In AIR 1966 SC 1427 it has been held that the three tests laid down in Nathu Ram's case are not cumulative tests and that even if one of them Is satisfied the whole appeal would abate. Hence, it is necessary to consider whether any of the three tests laid down in Nathu Ram's case is satisfied in the present case.
13. The first test is whether the success of the appeal will lead to a decision which will be in conflict with the lower Court's decision between the appellant and the deceased respondent. The right claimed by the plaintiff in the present case is an easementary right of way. According to him the same way passed over portions of the lands belonging to defendants 1 and 2 along the common boundary of the defendants' lands. Thus, there are two servant tenements each being a portion of the land belonging to each of the defendants. The first defendant has dug a trench in a portion of the land belonging to him over which the plaintiffs claim part of the right of way. Similarly, the second defendant has also dug a trench In a portion of his own land over which the plaintiffs claim part of the right of way. Thus, the path-way claimed by the plaintiffs lies in the two lands belonging to the defendants, one portion in the land of defendant 1 and other portion in the land of defendant 2.
14. Supposing the entire path-way passed through two lands belonging to A end B, if there is obstruction to the said path-way by both A and B. the plaintiff has to establish his easementary right in regard to the portion of the path-way lying in the land of A as well as in regard to the portion of the path-way lying in the land of B. If A and B obstruct the path-way at the same time by digging trenches in their own lands so as to obstruct the path-way, the cause of action would be different. Then, the plaintiff has to establish his easementary right separately as against A as well as against B in respect of different strips of the path-way lying in the different lands of A and B. In the present case the path-way passes along the common boundary line of the lands belonging to defendants 1 and 2. Though the common boundary line between the said two lands lies along the path-way, nonetheless, two different portions of the path claimed by the plaintiffs lie on different portions of the lands belonging to defendants -- one portion of the pathway lying in the land of defendant 1 and other portion lying in the land of defendant 2. Hence, in this case also if makes no difference to the nature of proof that must be offered by the plaintiffs. In order to succeed against both the defendants the plaintiffs have to establish their easementary right against that part of the path-way lying in the land of defendant 1 as well as independently, their right to the part of the path-way lying in the portion of the land of defendant 2.
15. It is contended by Mr. Bhatta, on behalf of the respondents, that the evidence of the first defendant was the only evidence adduced on behalf of the defendant and that both the defendants relied on the same. But that is due to the fact that the suit was filed against both the defendants and common evidence was recorded on behalf of both the defendants. The decree of the trial Court must therefore be construed as creating distinct and not joint liability in the defendants.
16. The second test is whether two different suits could be filed against two defendants. The path-way claimed by the plaintiffs lies partly over the land of defendant 1 and partly over the land of defendant 2 and therefore there are two servant tenements one belonging to each of the defendants. Though the plaintiffs have claimed easementary right over a single path-way, they have to establish their easementary right in respect of two portions of the oath-way lying over two portions of land each belonging to defendants 1 and 2. If the obstruction had been caused by one of the defendants to the part of the pathway running across his own land, a suit would lie against that defendant clone end it was not necessary to file a suit against the other defendant. Just because both the defendants have chosen to obstruct the parts of the path-way running in their respective land, it cannot be said that separate suits could not be filed against each of the defendants.
17. The third test to be considered is whether if the appeal succeeds the decree of the trial Court can be executed against the legal representatives of the deceased first defendant. Since the claim of the plaintiffs relate to easementary rights over two different servient tenements the decree of the trial Court which has become final as against defendant 1, can be executed against his legal representatives even if the suit were to fail against defendant 2. The mandatory injunction issued by the trial Court must be construed as one directing the first defendant to fill up the trench end restore the portion of the path-way in his own land and also directing defendant 2 to fill up the trench and restore the path-way in his own portion of the land. Hence, the success of the second defendant's appeal will not prevent the execution of the trial Court's decree against the legal representatives of the first defendant.
18. The decisions relied on by the respondents proceed on the basis that the decree of the trial Court is a joint decree creating joint liability in the defendants. But, as observed above, in the present case the decree cannot be construed as a joint decree or creating joint liability in the defendants. Hence, none of the tests laid down in Nathu Ram's case apply to the present case.
19. The appeal is therefore allowed, the decree of the lower Appellate Court is set aside and the appeal is remanded to the lower appellate Court for fresh disposal according to law. The lower appellate Court is directed to take back the case on its file and dispose of it afresh,
20. The court-fee paid on the memorandum of appeal will be refunded to the appellant,
21. Parties will bear their own costs in this appeal. The lower appellate Court is directed to dispose of the appeal expeditiously.