Satish Chandra, C.J.
1. This is a plaintiff's appeal. It arises out of a suit for an inj unction and possession.
2. The plaintiff claimed that the land in dispute was included in the chak allotted to him under the Consolidation operations. Defendants 3 to 5 had, in collusion with defendants 1 and 2, illegally constructed a drain over the land in dispute. The plaintiff also claimed damages of Rs. 100/-.
3. Defendants 1 and 2 were the State of Uttar Pradesh and the Executive Engineer, Canal Division. Defendants 3, 4 and 5 were the individuals who are alleged to have committed the wrongful act in collusion with the canal department authorities. The State as well as the canal Department filed one written statement while defendants 3 and 4 filed another written statement. The case of the State was that the land in dispute did not appertain to the plaintiff's chack and that the canal department was entitled to construct the drain. Defendants 3 and 4 pleaded that the plaintiff had no title to the disputed land and that the canal department had rightly constructed the drain.
4. The trial court held that the land in dispute was not part of the plaintiff's chak. The suit was dismissed. The plaintiff went up in appeal. The appellate court held that the land in dispute was not subject to consolidation operations and any allotment made by the Consolidation Authorities was without jurisdiction. The plaintiff hence could not claim a valid title to the land in dispute. It was also held that defendants 1 and 2 were justified and within their rights to reconstruct their Barah. The claim for damages also was repelled. Ultimately, the appeal was dismissed. Aggrieved, the plaintiff has filed the second appeal in this Court.
5. It appears that while the appeal was pending in the lower appellate court, Chajju, defendant No. 3, died on January 3, 1967 long before the decision of the appeal on April 24, 1967. In the lower appellate court this fact was not brought to the notice of the court and the court proceeded in ignorance of that fact. In the second appeal, the plaintiff moved an application for substitution of heirs of Chajju but the same was dismissed on March 2, 1968.
6. A learned single Judge felt doubtful whether the appeal was, under the circumstances, competent. He referred the entire case for decision by a larger Bench. That is how the matter has come up before us.
7. It is clear that the plaintiff impleaded defendants 3 to 5 on the plea that they had, in collusion with defendants 1 and 2, unauthorisedly constructed a drain over the plaintiff's land. The trial court found that the land did not belong to the plaintiff and that the defendants 1 and 2 were within their rights in constructing the drain. No finding was recorded in respect of the plaint case against defendants 3 to 5. The finding was, in a way, affirmed by the lower appellate court. It is thus apparent that the contest was between the plaintiff and defendants 1 and 2. Defendants 3 to 5, though they contested the suit, were not held to be the real contestants. The findings indicate that they had no place in the arena of this litigation which was confined to the plaintiff and defendants 1 and 2. In the circumstances, it cannot be said that defendants 3 to 5 were necessary parties to the litigation.
8. The question as to the consequences of the death of one party has been dealt with by the Supreme Court in State of Punjab v. Nathu Ram (AIR 1962 SC 89). It was held that when a party to a litigation dies and his heirs are not substituted, the proceedings abate as against him, It was observed that the Code does not provide for the abatement of appeal against other respondents and so there can be no question of the abatement of the appeal against them. To say that the appeal against them abated in certain circumstances, is not a correct statement. Of course, the appeal against them cannot proceed in certain circumstances and has, therefore, to be dismissed. Such a result depends on the nature of the relief sought in the appeal. The same conclusion is to be drawn from the provisions of Order I, Rule 9 of the Code which provides that no suit shall be defeated by reason of the misjoinder or non-joinder of parties and the Court may, in every suit, deal with the matter' in controversy so far as regards the rights and interests of the parties actually before it. The Court ruled:--
'It follows, therefore, that if the Court can deal with the matter in controversy so far as regards the rights and interests of the appellant and the respondents other than the deceased respondent, it has to proceed with the appeal and decide it. It is only when it is not possible for the Court to deal with such matters, that it will have to refuse to proceed further with the appeal, and therefore, dismiss it.'
The Court went on to illustrate the situations when it may not be possible for the Court to proceed, for instance, when the success of the appeal would bring into existence contradictory decrees or in a case where the appellant could not have brought a suit for the necessary relief against those respondents alone who are still before the Court and, thirdly, whether' the decree against the surviving respondents is ineffective, i.e., could not be successful. Applying these principles, it is clear that neither of the three kinds of cases contemplated by the Supreme Court judgment are present. There is no finding in respect of defendants 3 to 5. The finding is that defendants 1 and 2 were within their rights in constructing their drain. It is this finding that the plaintiff is challenging in second appeal. On facts, itis clear that defendants 3 to 5 were not necessary parties to the present litigation. The plaintiff would have got the relief against defendants 1 and 2, if he had confined the relief to them alone on the same allegations. It is, therefore, clear that the subject-matter of the second appeal in this Court was confined, in law, between the plaintiff on the one hand and the defendants 1 and 2 on the other. In this situation, even though the appeal before the lower appellate Court against defendant No. 3 may have abated, yet the second appeal in this Court cannot fail for that reason in its entirety. The impleadment of Chajju, as respondent No. 3, was improper because he was already dead. His name has to be scored out from the array of parties. The appeal can validly proceed against the other defendants-respondents.
9. Let the papers of the appeal be returned to the learned single Judge with this opinion and answer.