1. This second appeal is by the plaintiff in L. C. Suit 171 of 1964 on the file of the First Additional Munsiff at Dharwar, It is directed against the judgment and decree, dismissing the suit of the appellant in reversal of the judgment and decree of the learned Munsiff. made by the learned Civil Judge Dharwar in C. A. 38 of 1966.
2. The first respondent herein is admittedly the owner of the suit property. The second respondent is the tenant inducted for the first time in 1957.
3. The relevant lacks, briefly stated, are as follows:
The suit is one for possession of the suit land bearing RS. 38. situated in Guddadada Hulikatti in Kalghatgi Taluks of Dharwar District. Admittedly, it belonged to the first respondent. The case of the appellant is that his father was a protected tenant on the land in accordance with the Bombay Tenancy and Agricultural Lands Act. 1948 hereinafter referred to as the Tenancy Act. The father of the appellant is stated to have died about 8 or 10 years prior to the present suit. In the year 1957-58 for the first time the second respondent in collusion with the first respondent dispossessed the appellant of four acres of land in the first instance. It is alleged that the respondents in collusion which each other and with the assistance of the Village Officers got entries made in the relevant Revenue Records in their favour. There was also a Long Cause Suit 319 of 1962 for a mere injunction in respect of this property filed by the respondents. The said suit was decreed on 30-9-1962. The appellant therefore, was compelled to file the present suit for possession on the ground that he still continued to be a protected tenant on the land and that he had been unlawfully dispossessed of the same.
4. The defence of the respondents is, in substance, that the land was lying fallow in the year 1957 and the same was resumed by the Government end re-granted to the first respondent, and further that there was also an oral surrender of the lease by the appellant. It is also contended that the appellant not having applied for restoration of possession under Section 29 (1) of the Tenancy Act within two years of such dispossession, the present suit would be barred by time.
5. The trial Court decreed the suit of the appellant. On appeal by the present respondents, the learned Civil Judge, after allowing the appeal. dismissed the suit. In allowing the appeal the learned Civil Judge came to the conclusion, relying strongly on Exhibit 5, a copy of the mutation entry, and Ex. 47 a notice issued to the appellant to the effect that the land had been resumed by the Government and the same had been re-granted to the first respondent that the appellant had failed to establish his title as a protected tenant in respect of the suit land. He further held that the appellant was not also in possession of the land placing reliance on the contents of the aforesaid Exhibits and also the decree made in the earlier suit. L. C. Suit 319/62. Aggrieved by the said judgment and decree the plaintiff has appealed.
6. Before any reference is made to the contention urged on behalf of the appellant by his learned counsel Sri V S. Gunjal, it is necessary to refer to certain events that have transpired, during the pendency of the present appeal as they have a bearing on the decision of this appeal.
7. On 10-11-1972 on behalf of the appellant a memo was filed to the effect :
'Since it is reported with postal shera that 'R1 is dead'. In the circumstances the appellant prays for deleting R.1
Hence it is therefore Grayed that R.1 may kindly be deleted.'
Pursuant to the said memo, this Court passed an order on 10-11-1972 to the following effect:
'Perused the memo. The name of respondent 1 who is stated to be dead, is permitted to be deleted in the memorandum of appeal.'
8. In view of the aforesaid position, a question would naturally arise whether or not this appeal has abated as a whole to which I shall advert presently.
9. On behalf of the appellant, the following contentions were urged:
(1) That the lower appellate Court has misconstrued and misread Exts. 5 and 47, in coming to the conclusion that the appellant had lost his right as a protected tenant and also that he was not in possession of the suit land;
(2) That by virtue of the provisions of Ss. 7 and 8 of the Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950. the appellant would still continue to be a protected tenant in the absence of proof of surrender of lease in accordance with the provisions of the Tenancy Act:
(3) That the resumption, even if true, by virtue of the provisions of Section 65 of the Tenancy Act. would not operate to destroy the rights of the protected tenancy vested in the appellant;
(4) That although the suit is for a mere relief for possession, it would still be maintainable against a wrong-doer, without a specific relief as to declaration of title having been prayed for.
(5) That the suit in substance being one between rival tenants would not be barred by virtue of the provisions of either the Tenancy Act or the Mysore Land Reforms Act; and
(6) That on the question of abatement of the present second appeal which has arisen on account of the fact that the legal representatives of the first respondent had not been brought on record, it is submitted that the cause of action would survive against the second respondent herein, who is a mere tenant.
10. It seems to me that the contention of the appellant that Exts. 5 and 47 had been either misread or misconstrued by the lower appellate Court, is clearly well founded, and on that account, the judgment under appeal is clearly questionable. But. I do not think it necessary to examine this and the other contentions in detail as, in my opinion, this appeal abates as a whole, and therefore, has to be dismissed. In this view, several decisions relied on, on behalf of the appellant in support of the above contentions do not also require any further consideration.
11. I shall now refer to the circumstances in which the name of the first respondent, the landlord, was deleted from the record of this appeal. It is not also in dispute that the first respondent had died. The contention urged on behalf of the appellant is that the cause of action is distinct and separate in so far as the surviving second respondent is concerned and therefore, the appeal as against him could continue. In support of this submission, reliance was placed on certain allegations in the plaint.
12. On behalf of the second respondent Sri C. M. Desai, the learned counsel, by way of reply, contended that reading the plaint as a whole it would be clear that the entire case of the appellant had been based on collusion between the first and the second respondents in dispossessing the appellant from the suit land. It is further contended that in any event, the second respondent claims possession of the suit land by virtue of a tenancy created by the first respondent himself. In other words, unless the dispossession by the first respondent herein has been shown to be wrongful, the second respondent's possession would be lawful, and therefore the appellant must establish the wrongful act, if any, committed by the first respondent, in order to succeed even as against the second respondent. Putting it in yet another way the contention is that the cause of action, in the facts and circumstances of the case, is a joint one and hence the decree in appeal is clearly a joint decree in favour of both the respondents. Reliance was placed in support of this submission on a decision of the Supreme Court in Babu Sukhram Singh v. Ram Dular Singh (AIR 1973 SC 204).
13. On a careful consideration of the matter, I am of the view that the contention urged on behalf of the respondent clearly deserves to be upheld. It is clear from the plaint read as a whole, that the relief of possession has been based substantially on the ground that he had been dispossessed by both the respondents acting in collusion. It is no doubt stated in the plaint as contended by Sri Gunjal. that for the first time the appellant was dispossessed in the year 1957-58, of four acres of the suit land by the second respondent herein. But reading paras 3 and 4 of the plaint together and the relief claimed in the plaint, it seems to me to be plain that the case of the appellant has been that both the respondents were more or less hi the position of joint wrongdoers. Once this position is reached, it would be further clear that the decree in appeal is one jointly in favour of the said respondents. In these circumstances giving up of the first respondent, without bringing his legal representatives on record would leave the decree in favour of the first respondent undisturbed. Any decree in favour of the appellant, therefore, would lead to a position of passing inconsistent decrees in regard to one and the same suit. This is clearly not countenanced in law. Hence, the appeal of the appellant must be held to have abated as a whole. Support for this conclusion is clearly to be found in Babu Sukhram Singh's case. AIR 1973 SC 204 relied on by the surviving respondent.
14. The facts of Babu Sukhram Singh's case. AIR 1973 SC 204 were as follows:-- A suit was filed against 39 defendants jointly for permanent and mandatory injunctions in addition to some other reliefs. The mandatory injunction sought was in respect of the demolition of a construction and the filling up of the pits and nalahs on the land concerned therein. The trial Court had dismissed the suit in its entirety and the first appellate Court had partly decreed it against all the defendants. The High Court allowed the appeal of the defendants in that suit and dismissed the suit in toto. An appeal was taken upto the Supreme Court by the plaintiff therein. During the pendency of the appeal four defendants died and their legal representatives were not brought on record within the time prescribed. The application for setting aside the abatement and impleading the legal representatives of the deceased respondents therein also stood dismissed. In the circumstances the Court dismissed the appeal in the following terms:--
'Now the question is whether the appeal has abated or not. As seen earlier in the plaint a joint claim is made against all the defendants. The first appellate Court as mentioned earlier decreed the suit in part against all the defendants. The High Court has dismissed the suit against all the defendants. In this Court relief asked for was against all the defendants. No separate claim was made against any of the defendants. Under these circumstances, quite clearly the appeal has abated as a whole under Order XXII. Rule 4 of the C.P.C. The appeal is accordingly dismissed. No costs.'
15. In my view the principle underlying the above observations would be equally applicable to the case on hand. I therefore, hold that the present appeal has abated as a whole, and therefore, is liable to be dismissed.
16. In the result this appeal fails and is dismissed. But having regard to all the circumstances in the case. I am of opinion that the proper order as to costs should be that the parties should bear their own costs throughout both here and in the Courts below. It is ordered accordingly.