R.R. Rastogi, J.
1. This is plaintiff's second appeal against the judgment and decree passed by the 1st Additional Civil Judge Azamgarh, on 19-4-1967 reversing the judgment and decree passed by the Additional Munsif Azamgarh on 26-10-1964.
2. The suit of the plaintiff-appellant was for permanent injunction restraining the defendants-respondents from interfering with the plaintiff in irrigating his plots from the well situated in No. 1263 in village Sarai Lakhansi in the town of Mau Nath Bhanjan, and for recovery of Rupees 450/- as damages. The disputed well has been in existence for a very long time and there is a Paudur attached to the east of it. The plaintiff has got his plots Nos. 1268 1269 and 1270 to the north of the disputed well and his ease was that he had been irrigating those plots from the said well and he had acquired a right in that be half. He also alleged that Ins father had carried out certain repairs in the well and had constructed pucca pillars and a Teeth a on Pucca foundation about 15 years before the filing of the suit. Further, he claimed that the land occupied by paudar shown by letters Ka. Kha. Ga. Gha, in the site plan, given at the fool of the plaint which was appurtenant to the well would be deemed to have been settled with the plaintiff under Section 9 of U. P Act, 1 of 1951. It was alleged that the defendants had no right to interfere with the plaintiff in the exercise of the said right but demolished the pillars and Teetha on 25-6-61. He lodged a report at the police station and rebuilt the pillars but the defendants again demolished the same and also obstructed the plaintiff in the use of the well for irrigating his plots and thereby caused him a damage of Rs. 50/-. Subsequent to the filing of the suit it was claimed that because, of the obstruction by the defendants the plaintiff could not irrigate his brinjal crop as a result of which he suffered a considerable loss but he confined his claim to Rupees 400/-. On these allegations the plaintiffprayed for permanent injunction and recovery of Rs. 450/-, as damages.
3. Some of the defendants admitted the plaintiffs case while the rest contested it. Their defence was that at one time the disputed well was being used for irrigating the fields lying to the south and west of the well; but, since for over 20 years before the filing of the suit those fields had. been converted into Ahadi, the use of the well for irrigation had been totally stopped and the Paudar had become obsolete and it was filled up by the residents of that locality. It was further pleaded that the platform of the well was repaired by the residents of that locality by raising subscription, tt was denied that the plaintiff ever irrigated his plots from the disputed we'll or that he had acquired any right to do so. His claim for damages also was denied. It was averred that the plaintiff had a well in his plot No. 1272 on which he had installed a persian wheel and be had been irrigating his plots from that well.
4. The trial Court framed the relevant issues and alter considering the evidence of the parties believed the plaintiff's case and decreed it, both for injunction and damages. Aggrieved the defendants filed an appeal and challenged the findings of the trial Court.
5. The lower appellate Court, has, on a reappraisal of the oral and documentary evidence, recorded contrary findings. It has held that the plaintiff was possessed of a suitable source for irrigating his plots from the well which is towards north in plot No. 1272 and he had consciously concealed that fact, that the disputed well had long ceased to be a source of irrigation because the fields near about it had been converted into Abadi. The existence of the Paudar was accepted by the Court below but the view taken was that it had fallen in disuse, The plaintiff, thus, had failed to prove that he bad exercised the right of irrigating his fields from the disputed well within two years of the filing of the suit. On the question of damages also the court below found against the plaintiff. Accordingly, it allowed the appeal and set aside the judgment and decree passed by the trial Court.
6. It may be noted that during the pendency of the appeal before the court below defendant-appellant No. 12 died on 21-11-1965 and no application was made for substitution of his heirs and legal representatives.an application was given on behalf of the plaintiff for abatement ofthe appeal. The surviving defendants filed an objection to that application and after hearing parties the Court below held by its order dated 5-12-66 that the appeal abated against defendant No. 12 alone and not as a whole. The name of defendant No. 12 was hence directed to be deleted from the array of the appellants by the Court below.
7. The first submission made before me by Sri V. K.S. Chaudhary, learned counsel for the plaintiff-appellant was that a joint and indivisible decree for injunction and damages had been passed in favour of the plaintiff appellant by the trial Court and admittedly during the pendency of the appeal against that decree One of the defendants viz. defendant No. 12 died and steps were not taken for substitution of his heirs, and legal representatives and it was held that the appeal abated against him. That view was incorrect and the whole of the appeal should have been directed to abate because the decree of the trial Court was one and indivisible 'and inconsistent decrees came into existence as a result of the decision of the appeal. According to the counsel the decree for damages in so far as defendant No. 12 was concerned was and could not be reversed by the lower appellate court and the plaintiff can realise the decretal amount from the heirs of the deceased. On the other hand it was urged on behalf of the defendants-respondents that the view taken by the lower appellate Court was entirely correct. According to the learned counsel since the defence of all the defendants was common, because of the death of one of them during the, pendency of the appeal, the whole of the appeal could not have abated. Secondly since the decree of the trial court was joint and several there would be no abatement of the appeal as a whole.
8. The relevant provisions in this behalf are contained in Order 22, Rule 4 and Order 44 Rule 4 of the Civil Procedure Code. Order 22, Rule 4 (1) reads as under:--
'4 (1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court on an application made in that behalf, shall cause the legal representative of the deceased defendants to be made a party and shall proceed with the suit.'
Sub-rule (2) of this Rule enables the legal representatives of the deceased-defendants to make any defence appropriate to theircharacter as legal representatives of the deceased-defendant. Sub-rule (3) says:--
'4 (3) Where within the time limited bylaw no application is made under Sub-rule (1), the suit shall abate as against the deceased-defendants.'
Sub-rules (4) and (5) are not relevant for the present purpose.
9. Now, it is settled that the right to sue includes the 'right to appeal' when a party dies pending appeal. On a proper reading of the Rule, the position appears to be that on the death of one of the defendants the question of bringing his legal representatives on record will arise only if the right to sue survives. In other words if the 'rights of the deceased were personal to him, the right to sue will not survive to or against his legal representatives on the maxim 'actio personalis moritur cum persona,' a personal right of action dies with the person. If, however, right to sue survives, then it is to be found out whether the surviving defendants are such persons as could represent the deceased or in other words, whether the right of the dying defendants vest in the surviving defendants. If the right to sue vests in them no question of any abatement arises. Only the name of the deceased defendant is deleted and the case or appeal proceeds. Where the surviving defendants do not represent the deceased, the necessity of bringing his legal representatives arises, and as laid down in Sub-rule (3), if the legal representatives are not brought on record within the time limited ay law, the suit or appeal shall abate only as against the deceased defendant. (Vide Baij Natb v. Ram Bharose : AIR1953All565 (Para 5).
10. In the present case as noted above, the legal representatives of the deceased defendant No. 12 were not brought on record in time and the appeal abated against him and the decree of the trial Court became final as against him. The question is whether this partial abatement renders the whole appeal ineffective i. e. it can operate as an abatement of the whole appeal. There can be no dispute that Order 22 of the Code provides a complete Code to deal with the question which arises by reason of the death of one of the parties to an appeal and the appeal will abate only as a whole 'if the case is of such a nature that the appeal cannot proceed in the absence ofthe legal representatives of the deceased appellant.' (Vide Ram pal Sahu v. Babu Satdeo Jha, AIR 1940 Pat 346 (FB)).
11. The complication is, however, introduced by Order 41 Rule 4 which in sequence comes after Order 22, Rule 4 Order 41, Rule 4 lays down:--
'Where there are more plaintiffs or more defendants than one in suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be.'
Obviously this rule does not apply to different appeals on a common ground unless they have been consolidated. But, it does apply to a case where the decree proceeds on any grounds common to at) the plaintiffs or to all the defendants and in Baijnath : AIR1953All565 (supra) the Full Bench has laid down:--
'It does lay down a discretionary rule for the guidance of the Court that where for example, the Court of first instance finds in favour of the possession of a party and that party was dispossessed by three persons who were defendants in the suit and who put up a joint defence and only one of them appeals from the decree, the decree may be reversed not only in favour of the party who has appealed but also in favour of those defendants who have preferred no appeal.'
Their Lordships further proceed to observe :--
'Wide as the terms of Order 41, Rule 4 are, and important as it is for the courts not to cut down the vast discretion with which it vests them, it strikes us that the power of the appellate court under this section is restricted to reversing or varying decree in favour of only those who are plaintiffs or defendants, as the case may, be. In cases where there are more plaintiffs or defendants in the suit and the decree is passed against the defendants, the appealing defendant or defendants are looked upon as representatives of all the defendants. This rule would seem to be similar in principle to Order 1, Rule 8. It strikes us, however, that it cannot be said that the defendant who appeals and after the preferment of die appeal dies and against whom on the failure of his co-appellants or of his heirs or legal representatives to apply within the time allowed for substitution, an order of abatementhas been passed, can by any fiction of law be treated 011 a par with a defendant who has not appealed at all. The fact cannot be got over that he joined in preferring a common appeal, that thereafter he died, that thereafter his legal heirs or representatives and the other defendants appellants did not choose to have his heirs arid legal representatives brought on the record. It is clear that a decree obtained after the death of a deceased respondent cannot bind the representatives of the deceased unless they have been made parties to the suit in which it was pronounced. We do not think Order 41, Rule 4 can have any application to a case where one of the defendants has ceased to exist and his heirs and legal representatives are not on the record and indeed the Court has declared on a belated application by them that the suit has abated as against him.'
12. It has, thus, been ruled that Order 41, Rule I applies only to such cases where all the plaintiffs or defendants were alive and only one or more of them had cared to appeal from the decree. To go further than this would be to hold that Order 41 either overrides or creates an exception to Order 22, Rules 3 and 11 and authorises the Court in effect to set aside an abatement and to reverse or vary a decree which has become final against the deceased-appellant. It is obvious that Order 11, Rule 4 docs not in express terms override Order 22, Rules 3 and 11, nor does it so by necessary implication. There is no reference In abatement in Order 41, Rule 1 C. P. C. Therefore, the question whether the appeal has or has not abated as a whole will depend upon considerations other than the provisions of Order 41. Rule 4 C. P. C.
13. Apart from this decision, learned counsel for the plaintiff-appellant also relied upon a Full Bench decision in Ghulam Abbas v. Safdar Jah Zahid Ali Mirza, AIR 1941 Oudh 219 (FB) which was a case under Section 4 U. P. Encumbered Estates Act. The facts of that case briefly were that an application was given under Sections 4 and 49 of that Act by some landholders. It was opposed by some of the creditors on the grounds that the applicants were not land-holders within the meaning of the Act. That object ion prevailed with the Court, the Applicants, thereafter filed an appeal. During the pendency of the appeal one of the opposing creditors died and his legal representatives were not brought on record within the time allowed by law. It was held thatinasmuch as the interest of the creditors were joint and indivisible and they could not be separated from those of the rest and the heirs of the deceased creditors were necessary 'parties, the appeal must be deemed to have abated as a whole for otherwise it would lead to conflicting and inconsistent decisions with regard to the same subject-matter. The tests laid down in the case were :--
'(1) Whether the interests, of the defendants in the suit are joint and indivisible so that the interest of the deceased cannot be separated from those of the rest and
(2) Whether in the event of the appeal being allowed as against the remaining respondents, there would or would not be two inconsistent and contradictory decrees in the same case with respect to the same subject-matters.'
14. If these tests are applied to the present case, it would be seen that the plaintiff-appellants had claimed relief of permanent injunction and damages against all the defendants. The defence of the defendants was that the plaintiff was not entitled to any such relief. The trial Court decreed the suit. In respect of damages, it was a joint and indivisible decree. In other words the liability of the defendants-respondents under that decree was joint and several. The plaintiff could realize the amount of damages from any one of the defendants and in that event that defendant could have taken steps to reimburse himself to the extent of the amount paid by him for and on behalf of the other defendants, from those defendants. Now, all those defendants preferred an appeal against that decree. One of them; died during the pendency of the appeal and his legal heirs and representatives were not brought on the record within the time allowed by law as a result of which the appeal abated as against him. In other words the decree of the trial Court became final as against the heirs of the deceased defendant. Now as a result of the decision in the appeal the trial Court's decree, both for injunction and damages has been set aside. Despite the appellate Court's judgment the decree for damages can be executed by the plaintiff against the heirs of the deceased defendant. It would be seen, therefore, that as a result of the decision in the appeal two inconsistent and contradictory decrees in the same case with respect to same subject-matter have come into existence and certainly this is not countenanced bv Order 22, Rule 4 C. P. C. In my opinion,therefore, it has to be held that the appeal filed by the defendants-appellants from the judgment and decree of the trial Court abated as a whole.
15. The view taken in Baij Math's : AIR1953All565 in regard to the respective scope of Order 41, Rule 4 and Order 22, Rules 3 and 11 and approved by the Supreme Court. In Rameshwar Prasad v. Shambehari Lal Jagannath. : 3SCR549 , nine persons had instituted a suit for a decree in ejectment and for recovery of rent against two defendants and obtained a decree. In appeal the District Judge set aside the decree against one of the defendants. Thereafter the plaintiffs filed a second appeal in the High Court and when the appeal waspending one of them died. No application for bringing his legal representatives on the record was made within the prescribed time. The defendants respondents raised an objection that the entire appeal had abated because the interests of the surviving appellants and the deceased appellant were joint and indivisible and that in the event of the success of the appeal there would be two inconsistent and contradictory decrees. The surviving appellants claimed that the appeal was maintainable on the ground that without inpleading the plaintiff who had died they could have appealed against the entire decree in view of the provisions of Order 41, Rule 4 C. P. C. and as such they were competent to continue the appeal even after the death of the joint decree-holder and abatement of the appeal so far as he was concerned, and the Court had power to hear the appeal and to reverse or very the whole decree. The view taken by the Supreme Court on these facts was that Order 41, Rule 4 C. P. C. was not applicable for the second appeal in the High Court was filed by all the plaintiffs jointly, and the surviving appellants could not be said to have filed the appeal as representing the deceased appellant. It further held that the appellate Court had no power to proceed to hear the appeal and to reverse or vary the decree in favour of all the plaintiffs or defendants under Order 41, Rule 4 C. P. C. when the decree proceeded on a ground common to all the plaintiffs or defendants, if all the plaintiffs or defendants appealed from the decree and any of them died and the appeal abated in so far as he was concerned under Order 22. Rule 3 C. P. C. The decision in Baij Nath's case (supra) was approved.
16. The aspect would be further elucidated by a reference to Ratan Lal Shah v. Firm Lalman Das Chhadamma Lal, : 1SCR296 . In that case the plaintiffs had obtained a joint decree against Ratan Lal and Mohun Singh. Ratan Lal alone preferred an appeal against that decree before the High Court and im-pleadcd Mohan Singh as a respondent to the appeal. Notice of appeal could not be served on Mohan Singh and this Court dismissed the appeal on the view that the decree being joint against Ratan Lal and Mohan Singh in a suit founded on a joint cause of action and the decree having become final against Mohan Singh, Ratan Lal could not be heard on his appeal. On further appeal that decision was set aside by the Supreme Court and it was laid down that object of Order 41. Rule 4 is to enable one of the parties to a suit to obtain relief in appeal when the decree appealed from proceeds on a ground common to him and others. The Court in such an appeal may reverse or vary the decree in favour of all the parties who are in the same interest as the appellant. The same was the position in Mahabir Prasad v. Jage Ram : 3SCR301 on which reliance was placed by the learned counsel for the respondents in support of his contention that the defence of the defendants being common, in the event of one of them dying during the pendency of the appeal before the first appellate Court, where they were appellants, the appeal as a whole would not abate, but that submission is not very correct. In Mahabir Prasad's case Jttge Ham and two others were lessees of certain property belonging to Mahabir Prasad, his mother and wife. The plaintiff's suit for arrears of rent was decreed. The execution of that decree was resisted by the defendants on the plea, inter alia, that the decree was inexecutable because of the provisions of the Delhi Land Reforms Act, 1954. That contention was upheld and the execution application was dismissed. From that order Mahabir Prasad alone filed an appeal and impleaded his mother and wife as party-respondents. When the appeal was pending his wife died and he made an application for striking off her name from the array of respondents. That application was allowed. Ultimately the appeal was dismissed for the reason that the heirs and legal representatives of the deceased had not been brought on the record within the period of limitation prescribed and the appealabated in its entirety. Being aggrieved Mahabir Prasad preferred an appeal be-tore the Supreme Court and it was allowed. The view taken was that no distinction in principle could be made between the facts of that case and those of Ratan Lal Shah's case. The principle laid down was :--
'Competence of the appellate Court to pass a decree appropriate to the nature of the dispute in an appeal filed by one of several persons against whom a decree is made on a ground which is common to him and others is not lost merely because of the person who was jointly interested in the claim has been made a party-respondent and on his death his heirs have not been brought on the record. Power of the appellate court under Order 41, Rule 4 to vary or modify the decree of a subordinate Court arises when one of the persons out of many against whom a decree or an order had been made on a ground which was common to him and others has appealed. That power may be exercised when other persons who were parties to the proceedings before the subordinate court and against whom a decree proceeded on a ground which was common to the appellant and to those other persons are either not impleaded as parties to the appeal or are impleaded as respondents.'
17. It would, thus, be seen that Order 41, Rule 4 and Order 22, Rules 3, 4 and 11 operate in different fields and Order 41, Rule 4 does not override or create an exception to the latter. In the instant case Order 41, Rule 4 was not at all applicable because the appeal against the decree of the subordinate Court had been preferred by all the defendants and since the decree was joint and indivisible, in the event of one of them dying and his legal representatives not being substituted within the time prescribed, the appeal would abate not only against the deceased appellant but as a whole.
18. It was also contended on behalf of the defendants-respondents that since the suit filed by the plaintiff-appellant was for injunction, the mere fact that one of the defendants died and his heirs were not brought on the record, would not make it impossible to decide the dispute as between the plaintiff and the defendants who were before the Court. In support of this contention reliance was placed on Shibban v. Allah Mehar : AIR1934All716 . It was laid down in that case that in a suit for possession and injunction against trespassers in the event, of one of trespassers dying and his heirs not beingbrought on the record would not make it impossible to pass a decree in favour of the plaintiffs against the trespassers who are before the Court. Such decree would, of course, be against the defendants in their personal capacity. The present case is distinguishable inasmuch as it was not solely for injunction. There was claim for damages also which was partly decreed by the trial Court. That decree was reversed in appeal though it had become final against the heirs of the deceased defendants who had not been brought on the record within the period prescribed by law. Apart from that in Girja Shanker Singh v. Ram Singh : AIR1980All334 ) in a suit for mandatory injunction because of plaintiff's failure to bring the legal representatives of one of the defendants on the record within the time prescribed it was hold that abatement took place because the right to sue did not survive against the surviving defendants alone.
19. To conclude, therefore, in my opinion the partial abatement of the appeal rendered the whole of the appeal ineffective. It would operate as abatement of the whole appeal and that being so, the judgment and decree passed by the court below are liable to be set aside. On this view alone the appeal is liable to be allowed, and I, therefore, do not propose to enter into the merits.
20. The appeal is hence allowed and the judgment and the decree of the court below are set aside and the decree of the trial court is restored. The plaintiff-appellant is entitled to costs from the defendants-respondents all-through.