1. This second appeal has come to us on a reference made by Mr. Justice Manchanda. The second appeal is by the plaintiffs. There were two plaintiffs Sri Reoti Prasad and Sri Nand Kishore. The suit was filed against three sets of defendants. The first set consisted of only one person L. Hoti Lal. The second set consisted of four persons Allahdiya, Ibrahim, Niyaz Mohammad and Ali Mohammad. The third set consisted of a person named Ganga Sahai. The land in dispute was situated in Mohalla Saral Mehar Singh alias Nai Basti in the town of Khurja and bore municipal No. 49. The plaintiffs alleged that they were the owners of the land and originally Khuda Baksh, the ancestor of that defendants second set, had on certain terms constructed a house on the land. They further alleged that in the year 1916 the father of the plaintiff No. 1 who was the owner of the land at that time filed a suit in the Small Cause Court for recovery of rent from Khuda Baksh and some of the defendants second set. The suit, according to the plaintiffs, was compromised and it was, agreed that the defendants second set would continue in possession as long as they paid annas eight per month as rent. The defendants second set had, the plaintiffs alleged, paid rent up-to 31-3-1946 but the rent subsequent to that date was still due. On 28-1-1948, however, those defendants had executed a sale deed in respect of the right of residence on the land and the materials of the house standing upon it in favour of the defendant first set. The plaintiffs alleged that the defendants second set were only tenants at will and had no right to transfer the house. The defendant first set had, therefore, no right to retain possession thereof. The relief they claimed was that the defendant first set be directed within a fixed period to remove the materials and in case of his failure to do so the materials may be removed and the plaintiffs may be awarded compensation over the land.
2. Three written statements were filed, one by the defendant No. 2, another by the defendant No. 1 and the third by the defendant No. 3. Various pleas were taken and the most important of them were that the defendants were permanent tenants of the land who had taken the land for building purposes and the plaintiffs were, therefore, not entitled to have the materials removed or to get possession over the land. It was pleaded that the plaintiffs were zamindars who had let out the land for building purposes and that there was a custom according to which the rights of the defendants were transferable. Limitation and the bar of Section 60 of the Easements Act were also pleaded.
3. The trial Court dismissed the suit holding that the defendants second set were in possession of the site as permanent tenants and had a right to transfer the house to the defendant No. 1 who was on that account not liable to be ejected. He did not empress any opinion on the other questions which were raised by the defendants. The plaintiffs want up in appeal to the learnedCivil Judge. He agreed with the finding of the learned Munsif that the defendants second set were permanent tenants of the land and had a right to transfer the right of residence as well as the materials of the house to the defendant No. 1. He, therefore, upheld the decree passed by the learned Munsif. A cross-objection had been filed on behalf of the defendants before him. He allowed it.
4. The plaintiffs then filed the second appeal which is now before us.
5. During the pendency of the second appeal L. Nand Kishore, one of the plaintiffs-appellants, died. He is said to have left two persons as his heirs, his widowSmt. Godawari and his mother Smt. Narayani. Only Smt. Godawari was brought on record in his place. No attempt was made to bring on record Smt. Narayani as his legalrepresentative. Smt. Narayani also died leaving several heirs. Reoti Prasad the other plaintiff claimed to be oneof her heirs. There were three other persons who alleged to be her heirs. An application was made to bring on record the other heirs as respondents and to allow ReotiPrasad to continue the appeal as the heir of Smt Narayani. This application was rejected on the ground that Smt. Narayani was never brought on record in place of L. Nand Kishore deceased. The result was that in place of L. Nand Kishore only his widow Smt. Godawari was brought on record while his mother Smt. Narayani was not brought on record and on the death of Smt. Narayani her heirs too were not impleaded.
6. On the above facts when the appeal was taken up by Mr. Justice Manchanda for hearing an objection wasraised that on account of the omission to implead Smt.Narayani or her heirs the entire appeal had abated. Thecontention was that if a party had died leaving several heirs and only one of them had been brought on record,on account of the omission to bring the other heirs on record the appeal against the deceased should be held to have abated. Reliance was placed on two earlier decisions of this Court in Ghamandi Lal v. Amir Begum, ILR 16 All 211 and Haidar Husain v. Abdul Ahad, ILR 30 All117.
7. This objection of the respondent about the abatement of the entire appeal was resisted on behalf of theappellants who urged that if a person died leaving several heirs and one was brought on record it was enough to save the appeal from abatement. They placed relianceon a decision in Muhammad Zafaryab Khan v. Abdul Razzaq Khan : AIR1928All532 . All the three decisions were Division Bench decisions and'finding that there was a conflict between them which ought to be resolved the learned single Judge directed the caseto be referred to a larger Bench. That is how the case has come up before us.
8. So far as the preliminary objection is concerned, the controversy appears to have been set at rest by adecision of the Supreme Court in Andhra Bank Ltd. v. R. Srinivasan : 3SCR391 . It was argued in that case before their Lordships of the Supreme Court on the basis of a decision of the Madras High Court in Natesa 'Sastrigal v. Alamelu Achi : AIR1950Mad541 , that the words 'legal representatives' used in Clause (11) of Section 2 C. P. C. did not include 'legatees' of a part of the estate only and the wards 'legal representatives' referred to all the persons representing the estate. Their Lordships ofthe Supreme Court overruling the Madras decision held that the suggested interpretation of the definition of the term 'legal representatives' in the Civil Procedure Code was not correct. They expressed the view that-
'There is no justification for holding that the 'Estate' in the context must mean the whole of the estate. Therefore, we are satisfied that the plain construction of Section 2(11) is against Sastri's argument apart from the fact that considerations of logic and common sense are equally against it.'
They, therefore, held that a person who was a legatee even of a part of the estate could represent the estateand said :
'In regard to the intermeddlers they are said to represent the estate even though they are in possession of parcels of the estate of the deceased and so there should be no difficulty in holding that the clause 'a person who in law represents the estate of a deceased person' must include different legatees under the will.'
It follows from these observations that no question of abatement will arise if one of several legal representatives of a deceased person representing a part of his estate is brought on record. Though the appeal will not abate, in the circumstances of a particular case it may not be possible for the Court to pass an effective decree in the absence of all the necessary parties. There may also be a chance of conflicting decrees coming into existence. The Court will, in those circumstances, refuse to help the appellants (not?) on the ground that the appeal had abated but on the ground that the appeal was not in proper form.
9. It was urged on behalf of the appellant that in the present case there can be no question of any defect in the form of the appeal because any one of several co-sharers could eject a trespasser. It is, however, overlooked that the defendants are not alleged to be trespassers. They are, according to the plaintiff's own case, tenants and if there are several landlords some of them could not either terminate the tenancy or sue for the tenant's ejectment. In the absence of all the heirs of L. Nand Kishore, therefore, no decree could be passed in favour of the plaintiffs for the ejectment of the defendants. The omission to implead all the heirs of L. Nand Kishore thus undoubtedly brings about a defect in the frame of the appeal. As all the parties were not before the Court an effective decree could not be passed in the plaintiffs' favour.
10. Coming to the merits because the whole case has been referred to us, it appears from the plaint Itself that the defendants second set were alleged to be the tenants of the land. They had assigned their rights in favour of the defendants first set. Though the plaintiffs described the defendants second set as tenants-at-will learned counsel for the appellants has not been able to show how they became, tenants-at-will. If they were permanent tenants there could be no question of their ejectment. If their tenancy was not permanent and they were tenants from year to year or month to month before they could be ejected their tenancy should have been determined in one of the ways recognised by the Transfer of Property Act. In the present case it is not even alleged that the tenancy had been terminated in any way. Possibly it is in order to avoid the necessity of terminating the tenancy that the defendants were described as tenants-at-will. This description was, however, clearly incorrect. if the tenancy had not terminated the suit for possession land ejectment was not maintainable and was liable to be dismissed.
11. In the above view of the case it is not necessary to go into the question whether the defendants were permanent tenants or not. We express no opinion on this point and leave it undecided. The dismissal of the appeal was, therefore, correct though it is being upheld on grounds different from those on which it has been based by the lower appellate Court.
12. The appeal fails and is dismissed with costs.There will be only one set of costs.