M.P. Mehrotra, J.
1. This second appeal arises out of a suit for injunction. The plaintiff sought the removal of a Gumti and a decree for permanent injunction restraining the defendants from interfering with the plaintiff's right to construct on the land in dispute. The two defendants are (1) Nagar Palika, Moghal Sarai and (2) Vibhuti Singh.
2. The facts in brief are these :
It was claimed that the defendant No. 1 allotted the land in dispute in favour of the plaintiff on 1st of December, 1969 and the allotment was by way of a lease for a period of eight years. The plaintiff was directed to construct a Pucca shop on the said land. The defendant No. 2, in collusion with the defendent No. 1, was alleged to have put up a tin Gumti some five or six days before the suit and it was alleged that the said defendant No. 2 was seeking to interfere in the plaintiff's construction. The defendant No. 1 was not providing any redress to the defendant No. 2 even though the former was moved to do so. The defendant No. 2 contested the suit on various grounds. He claimed rights on the ground that on 18th Oct., 1969, the land in question had been settled with him on a daily fee or rental of Re. 1/- and since then be had been in possession. He had deposited six months' rent in advance. He had constructed a Gumti by investing Rs. 600/-. It was also contended that in an earlier suit filed by him, i. e. Suit No. 607 of 1969 -- Vibhuti Singh v. Nagar Mahapalika, a decree had been passed in his favour and against the defendant No. 1 whereby the latter had been restrained from dispossessing him i. e. Vibhuti Singh. The suit was, therefore, also contended to be barred by Section 11 CPC in view of the decree passed in earlier suit No. 607 of 1969. Certain other defences were also taken but it is not necessary to notice them in the instant appeal.
3. The trial court framed the necessary issues, tried them and ultimately decreed the suit. An appeal was filed in the lower appellate court but the same also failed. Now, the defendant No. 2 has come in the instant second appeal and in support thereof I have heard his learned counsel Sri Rule N. Singh. In opposition, Sri Mohammad Moonis, learned counsel for the respondents has made bis submissions.
4. Before going into the merits of the appeal, it will be necessary to dispose of an application which has been moved on behalf of the heirs of the appellant who died during the pendency of this second appeal on 27th Oct., 1976. As there happened to be a short delay of two days in the filing of this application for substitution, therefore, a prayer was made for setting aside the abatement and in support of this prayer, a supplementary affidavit was filed setting out the circumstances in which the delay has occurred. I am allowing this prayer, as in my opinion, sufficient cause has been shown for setting aside the abatement. Now, coming to the merits of the substitution application, a question has arisen as to whether in the facts and circumstances of the case, the heirs and legal representatives of the deceased appellant can be held to be entitled to be brought on record. Sri Mohammad Moonis contends that the findings of the court's below are that the appellant was a mere licensee and his licence stood revoked, therefore, his legal representatives are not entitled to be brought on record as no cause of action survives on the death of mere licensee. In this connection, he placed reliance on the following cases :
In Mahtab Singh v. Hub Lal : AIR1926All610 where a Division Bench laid down that in the case of personal injuries, whether mental or physical, the real cause of action as well as the claim for incidental costs dies with the death of the person injured and the right to sue or continue the suit does not survive to the legal representatives of the deceased. It seems that the plaintiff had filed a suit for damages for malicious prosecution which was dismissed by the trial court and then the plaintiff filed a first appeal in this court. During the pendency of the appeal, the appellant died and, therefore, the question arose whether the heirs of the deceased were entitled to press the appeal. The Bench held that this appeal should be deemed to have abated and the right to sue did not survive to the legal representatives of the deceased.
In Nand Gopal v. Brij Mohan Lal, (1966 All LJ 166), a Division Bench of this Court laid down that it is well settled law that a licence does not create interest in the laud as it is merely a leave to do a thing lawfully which otherwise would be unlawful. It is thus a matter purely personal between the grantor and the grantee of the licence. Such a licence must be held to have lapsed with the death of the licensor or of the licensee. The counsel has also referred to Karselal v. Badriprasad, (AIR 1922 Nag 162) and Chinnan v. Ranjithammal, (AIR 1931 Mad 216).
5. On the other hand, Sri Rule N. Singh, learned counsel for the appellant, contended that after a suit had been filed and a decree passed in the trial court, then the situation changed and thereafter an appeal pending against such a decree cannot stand abated on the ground that the cause of action has not survived on the death of either party to the litigation. He placed reliance on the following cases :
Muhammad Hussain v. Dipchand ((1887) ILR 9 All 131) (FB) is Full Bench decision of this court where it was laid down that in a personal cause of action it would abate in case the plaintiff dies during the pendency of the suit; there will be no such abatement in case a decree has been passed in his favour by the trial court and he dies during the pendency of the appeal against such decree. It was held that the benefit of the decree could be availed of by the legal representatives of the deceased plaintiff.
In Mst. Ram Kaur v. Jiwan Singh, (AIR 1921 Lah 52), a Division Bench followed the ratio laid down by the aforementioned Full Bench judgment of this Court.
In (1902) ILR 26 Bom 597, in a suit for defamation the plaintiff obtained a decree for damages against the defendant and executed the decree. The defendant filed an appeal but died before the hearing. A question arose whether the legal representatives of the deceased could continue the appeal or the appeal stood abated. There was a difference of opinion between the two Judges of the Division Bench. Then the controversy was referred to a third Judge and he held that the appeal did not abate and that the defendant's legal representative had the right to continue the proceedings as the appellant. It was observed :
'Where, however, a decree has been passed and damages awarded, some pecuniary damage is inflicted thereby on the personal estate and it is to obtain relief from this that the appeal is brought.'
Further on in the judgment it was laid down:
'The result of these authorities would clearly seem to be that, where the claim has been perfected by a judgment, the nature ot the relief claimed on appeal stands on a different footing and there will be no abatement.'
In Paraman Chetty v. Sundararaja Naick, ((1903) ILR 26 Mad 499), a suit for damages for malicious prosecution was decreed by the trial court and the said decree was affirmed by the lower appellate court. Then the defendant filed a second appeal and during the pendency of the said appeal died. The question arose whether the legal representative of the deceased defendant could prosecute the appeal. It was held that the legal representative was entitled to prosecute the appeal. Reliance was placed on (1902) ILR 26 Bom 597 (supra).
A reference has also been made at the bar to Josiam Tiruvengadachariar v. Sami Iyengar ((1911) ILR 34 Mad 76) where a Division Bench referred to the earlier decision reported in (1903) ILR 26 Mad 499 (supra) and laid down that the ratio of the earlier case would be applicable where a decree has been pased in a suit based on a personal cause of action and during the pendency of the appeal by the defendant, the plaintiff-decree-holder respondent dies.
In Jagdish Prasad Mathur v. United Provinces Government 0044/1956 : AIR1956All114 , it was laid down that during the pendency of the appeal, on the death of a plaintiff who sought a declaration about his dismissal from service, the cause of action did not survive to the heirs and legal representatives and the declaration could not be granted to such heirs.
In Kalloo Chaudhari v. Ramzan, (1942 All WRCC 345) : (AIR 1943 Oudh 14), it was held that the maxim, actio personalis moritur cum persona applies to a suit for vindication of a personal right and upon the death of the plaintiff the right to sue must be deemed to be extinguished. The principle applies even where the right to sue has matured in a decree if the right does not relate to or affect the estate of the deceased and does not involve any right to property which may be considered to be a heritable asset
In Syedna Taher Saifuddin Saheb v. State of Bombay : AIR1958SC253 , a suit was filed by the plaintiff seeking a declaration that the orders of excommunication passed by the defendant were invalid. A preliminary issue was raised and tried in the suit and an appeal was filed against the finding on the said issue. During the pendency of the appeal, the plaintiff, respondent died and his daughter applied to be substituted in his place but she did not press the application and accordingly it was dismissed. In these facts and circumstances, it was held (at p, 254):
'the claim with which the plaintiff came to Court was that he was wrongly excommunicated, and that was an action personal to him. On the principle, actio personalis moritur cum persona, when he died, the suit should abate, and there could be no question of an appeal in relation thereto, as an appeal is only a continuation of the suit, and there could be no question of continuing what did not exist. The appeal could not be continued against the State for seeking decision on the validity of the Act.'
In the body of the judgment, the Supreme Court emphasised:
'It should be remembered in this connection that no decree had been passed in the suit'
6. I may state here that certain other cases were also cited, for example, Mrs. M. N. Clubwala v. Fida Hussain Sabah : 6SCR642 , B. N. Lall v. Dunlop Rubber Go. (India) Ltd. : 1SCR23 , Shanti Sarup v. Radhaswami Satsang Sabha, Dayal-bagh, Agra : AIR1969All248 and Secretary of State for India v. Karuna Kanta Chowdhry ((1908) ILK 35 Cal 82) which deal with the distinction between a lease and a licence and the contention was that in the facts of the instant case, the defendant No. 2 was not granted any lease but a mere licence. It seems to me that the case law does show that if a plaintiff dies during the pendency of an appeal by him against the dismissal of his suit by the trial court--a suit based on a personal cause of action--then the appeal has been held to stand abated. However, in case the plaintif's suit has been decreed in his favour, then the death of defendant during the pendency of an appeal against the trial Court's decree does not lead to the abatement of the appeal even though the cause of action in the suit be personal against the defendant. In the facts of the instant case, the plaintiff is seeking injunction against the defendant No. 2 on the allegation that the latter has no right in respect of the land in dispute. The defendant No. 2, on the other hand, has set up himself as an earlier lessee of the said land. It is true that the two courts below have not upheld his claim and they have held that he was only a licensee. However, in the second appeal, the said finding of the courts below has been questioned and it seems to me that if the defendant No. 2 as the appellant was entitled to question the said finding in his lifetime, his legal representatives should not be debarred from questioning the said finding on the ground that the two courts below held the defendant No. 2 to be a licensee. This aspect has to be clearly borne in mind. The maxim actio personals moritur cum person a refers to a personal cause of action not surviving after the death of the person concerned. However, if there be dispute whether the cause of action is a personal one or not, then I apprehend the said maxim will not be applicable. I may take an example. In a title suit, the plaintiff claims that the defendant is a licensee and that the latter is liable to be evicted in the suit. The defendant, on the other hand, claims to be a rival title holder of the property in suit. The suit is decreed by the trial court and the defendant is held to be a mere licensee liable to be evicted in suit. The defendant appeals and dies during the pendency of the appeal. Can it be said that the heirs of the defendant are not entitled to be brought on record and prosecute the appeal on the ground that in the trial court, their predecessor-in-interest was held to be a licensee? The said predecessor-in-interest was entitled to show that his status was not of a licensee but that of a title holder. If he could substantiate that claim, then the plaintiff's suit was bound to be dismissed by the lower appellate court. In the same manner if his heirs and legal representatives are able to substantiate their claim to a better title than the plaintiff, then the appeal is bound to be allowed by the appellate court and the suit has to be dismissed. The same is exactly the position in this case. If the deceased appellant could succeed in persuading this court that he was not a mere licensee but a prior lessee of the land in suit, then the plaintiff-respondent's suit was bound to be dismissed and this appeal was bound to be allowed. I cannot see why the deceased appellant's heirs and legal representatives cannot claim and vindicate the same right which their predecessor was claiming in the appeal. It will thus be seen that no appeal can be held to stand abated on the death of the defendant-appellant merely because the courts below have returned a finding which holdsj such a person as a mere licensee even though the said finding itself is being disputed in the appeal. If this were not the law, then many good appeals which stood the chance of succeeding in the lifetime of the defendant-appellant would be held to have abated in consequence of his death and the valuable rights of the heirs and legal representatives would be lost without affording them an opportunity to vindicate their claim as successors of the deceased appellant.
7. Apart from the said aspect of the matter, it seems that the ratio laid down in (1903) ILR 26 Mad 499 (supra) will be applicable to the facts of the instant case also. In the Madras case, a decree had been passed by the two courts below and the defendant had come up in the second appeal and died during the pendency of the appeal. It was held that the legal representatives of the deceased defendant were entitled to prosecute the appeal. I accordingly allow the prayer in Civil Misc. Application No. 1014 of 1977.
8. Now, I have to consider the merits of the appeal. Sri Rule N. Singh contended that the courts below were wrong in holding that the judgment of the earlier suit No. 607 of 1969 was not res judicata in the instant suit. His point was that even though the ex parte decree was passed in the earlier suit, still, it would be res judicata and in this connection reference was made to Sailendra Narayan Bhanja Deo v. State of Orissa : 1SCR72 , Radha Mohan v. Mrs. Elize Jene Hilt (AIR 1947 All 147) and Baboo v. Mt. Kirpa Dai : AIR1950All488 . In the earlier suit, Vibhuti Singh, the deceased appellant in this appeal, was the plaintiff and he had impleaded the Nagar Palika, Moghal Sarai, as the only defendant. The suit was based on the allegation that the said plaintiff was a tenant of the laud in dispute. A certified copy of the ex parte judgment in the said earlier suit was filed in the instant suit and it was exhibited as Ext. A-1. It will be seen that the earlier suit was instituted on 6-12-1969. The lessee rights in favour of the plaintiff-respondent of this appeal had been created with effect from 1-12-1969. In other words, these rights were created before the filing of the said suit on 6-12-1969. Now, as I have stated above, the present plaintiff-respondent Damari Lal was not a party to the earlier suit. Can it be said that he is claiming right under defendant in the said suit, namely, the Nagar Palika, Moghal Sarai, who was undoubtedly a party to the earlier suit. In note 49 to Section 11, C. P. C. in Chitaley's Commentary on the Civil P. C., 8th Edn. (1971), it has been observed:
'A person is said to claim under another when he derives his title through the other by assignment or otherwise. But his title must have arisen subsequently to the commencement of the first suit. Thus, where a person is adjudged an insolvent, any decision obtained against him subsequently thereto will not bind the Official Receiver as his title arose previous to the decision. Similarly, a purchaser, mortgagee, lessee or donee of a property is not bound by a decree obtained in a suit against the vendor, mortgagor, lessor or donor commenced after the date of the purchase mortgage, lease or gift.'
9. A large number of cases have been referred to in support of the said proposition, such as, Radhamandhub Holdar v. Monohur Mookerji (1887-88) 15 Ind App 97 (PC), Mt. Gindori v. Sham Lal (AIR 1946 Lah 330 (FB)) Beli Ram and Brothers v. Mohammad Afzal and Kishori Ramanji v. Duley Ram (AIR 1924 All 474). Therefore, applying the said principle of law to the facts of the instant case, as the transfer of the lessee rights by the Nagar Palika, Moghal Sarai, in favour of the plaintiff-respondent was prior to the institution of the earlier suit, the decree passed in the said suit cannot be res judicata against the plaintiff respondent in the instant suit. In this view of the matter, it is not necessary to discuss the other aspects of the matter because due to the aforesaid position of law, it has to be held that the courts below were right in not treating the decree or finding of the earlier suit as res judicata.
10. Sri Rule N. Singh also sought to contend that as lessee rights were granted to the plaintiff-respondent for a period of eight years and as the said period expired on 1st of Dec., 1977, therefore, he lost his right to prosecute this appeal after 1st Dec., 1977. He has placed reliance on a number of cases where it has been laid down that in certain circumstances, the court can notice subsequent developments and events which come into existence or take place after the institution of the suit. The leading case is which has been referred to in : AIR1956SC655 , : 1SCR548 and : AIR1959SC577 . However, the ratio laid down in the said cases is exceptional in nature and the fundamental rule is that the rights of the parties are decided on the basis ot the cause of action disclosed in the plaint. It is true that in certain exceptional circumstances, an appellate court has a right to take into consideration the subsequent developments, whether of law or of facts, but those exceptional circumstances are not present in the instant case. In this connection, the following passage from : 3SCR163 .
'Now it is a fixed principle of law that a suit must be tried on the original cause of action and this principle governs not only the trial of suits but also appeals. Indeed the appeal being a continuation of the suit new pleas are not considered. If circumstances change they can form the subject of some other proceedings but need not ordinarily be considered in the appeal. To this proposition there are a few exceptions. Some times it happens that the original relief claimed becomes inappropriate or the law changes affecting the rights of the parties. In such cases, courts may allow an amendment pleading the changed circumstances. Sometimes also the changed circumstances shorten litigation and then to avoid circuity of action the courts allow an amendment. The practice of courts is very adequately summarised in Ram Ratan Sahu v. Mohant Sahu, (1907) 6 Cal LJ 74. Mookerjee and Holmwood, JJ. have given the kind of changed circumstances of which the courts usually take notice, with illustrations from decided cases. The judgment in that case has been consistently followed in India, In Raicharan Mandal v. Biswanath Mandal, AIR 1915 Cal 103 other cases are to be found in which subsequent events were noticed. The same view was taken by the Federal Court in following the dictum of Hughes, C. J. in Patterson v. State of Alabama, (1934) 294 US 600 at p. 607. In Surinder Kumar v. Gian Chand : 1SCR548 this Court also took subsequent events into account and approved of the case of the Federal Court. In view or these decisions it is hardly necessary to cite further authorities.'
Now, in the facts of the instant case, even if the lease period in favour of the plaintiff-respondent has expired on 1st Dec. 1977, there is nothing to prevent the Nagar Palika from renewing the period of lease in favour of the plaintiff-respondent. The defendant-appellant, in any case, cannot take advantage of the said fact. In my opinion, therefore, the said contention made by Sri Rule N. Singh is not correct.
11. So far as the finding recorded by both the courts below that the defendant appellant Vibhuti Singh (deceased) was not a lessee but a mere licensee of the land in dispute is concerned, I think the same is based on good evidence and material on record. Learned counsel for the appellant has not been able to show that his client acquired any lessee rights.
12. In this view of the matter, this appeal fails and is dismissed with costs.