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Shakoor Khan and ors. Vs. Ram Mohan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 219 of 1967
Judge
Reported inAIR1977MP187; 1977MPLJ795
ActsCode of Civil Procedure (CPC) , 1908 - Order 22, Rule 9
AppellantShakoor Khan and ors.
RespondentRam Mohan and ors.
Appellant AdvocateJ.P. Sharma, Adv.
Respondent AdvocateA.R. Naokar, Adv.
DispositionAppeal dismissed
Cases ReferredHarihar Prasad Singh v. Balmiki Prasad Singh
Excerpt:
- - 1. a preliminary objection has been raised by the counsel for the respondents that the whole appeal has abated on account of the failure on the part of the appellants to bring on record the legal representatives of the deceased ibrahim khan (appellant no. the applicants have miserably failed to make out a case for setting aside abatement and for impleading legal representatives of the deceased ibrahim khan after such an inordinate delay of 3 years. jage ram, (air 1971 sc 742) in support of his contention that since all the defendants are jointly interested in the decree, failure to bring on record the heirs ofone of them would not divest the appellate court of its jurisdiction to pass decree under appeal under order 41, rule 4, c......filed a suit for possession, permanent injunction and mesne profits against shakoor khan, akbar khan, ibrahim khan and hadi khan on 17-9-1954. that suit was registered as civil suit no. 215 of 1954 and it resulted in a decree in favour of bakshi lal by the first appellate court, namely, additional district judge, vidisha on 18-1-58. it is, however, important to note that only a decree for permanent injunction was passed as it was held that the plaintiff would be deemed to be in possession. the matter went in appeal before the high court, but the decree passed by the additional judge was kept intact. bakshi lal thereafter filed an application in execution for possession of the land on the basis of the decree for permanent injunction granted in his favour. that application was dismissed.....
Judgment:

C.M. Lodha, J.

1. A preliminary objection has been raised by the counsel for the respondents that the whole appeal has abated on account of the failure on the part of the appellants to bring on record the legal representatives of the deceased Ibrahim Khan (appellant No. 3) who died in May 1973. It is, therefore, necessary to first dispose of the preliminary objection.

2. The facts of the case are, that one Bakshilal filed a suit for possession, permanent injunction and mesne profits against Shakoor Khan, Akbar Khan, Ibrahim Khan and Hadi Khan on 17-9-1954. That suit was registered as Civil Suit No. 215 of 1954 and it resulted in a decree in favour of Bakshi Lal by the first appellate Court, namely, Additional District Judge, Vidisha on 18-1-58. It is, however, important to note that only a decree for permanent injunction was passed as it was held that the plaintiff would be deemed to be in possession. The matter went in appeal before the High Court, but the decree passed by the Additional Judge was kept intact. Bakshi Lal thereafter filed an application in execution for possession of the land on the basis of the decree for permanent injunction granted in his favour. That application was dismissed and this led to the filation of the present suit for possession against the four defendants. The trial Court, namely Civil Judge Class II Ganj Basoda decreed the suit for possession by his judgment dated 12-11-1965. The defendant filed appeal which was dismissed by the First Additional District Judge, Bhopal, on 23-6-1967 and this is defendants' second appeal.

3. It may be mentioned here that defendant No. 1 Shakoor Khan died during pendency ot this appeal and his legal representatives Mst. Habiban Bi and others have been brought on record. Thereafter as already stated above, defendant-appellant No. 3 Ibrahim Khan also died in May 1973. An application for bringing on record his legal representatives was made on 5-2-1976 and it is supported by affidavit of Moosa Bhai one of the sons of Ibrahim Khan. The application is being opposed on behalf of the respondents as hopelessly barred by time.

The legal representatives of Ibrahim Khan have also made an application for setting aside abatement under Order 22, Rule 9, C. P. C. These two applications under Order 22, Rule 3 and Order 22, Rule 9 are registered as I. A. Nos. 401/76 and 489/76.

4. The grounds taken in the applications under Order 22 are that the applicants, namely, legal representatives of Ibrahim Khan had no knowledge about pendency of this appeal and that they came to know about it on 6-12-1975 when one Salimuddin, son of Shakoor Khan Went to the village Mehmuda where the applicants are residing and informed them about the pendency of this appeal. Even after getting information on 6-12-1975 an application under Order 22, Rule 3 has been made after 2 months and no explanation has been given for this delay. No affidavit of Salimuddin has been filed in support of the application. The appellant No. 2 Akbar Khan is the brother of deceased Ibrahim Khan and is living in the same village as the applicants. It is therefore, impossible to believe that the applicants could not have come to know of the pendency of this appeal from Akbar Khan, their own uncle. No affidavit of Akbar Khan has been filed to show that he was not in touch with his nephews during this period of 3 years after the death of Ibrahim Khan. The applicants have miserably failed to make out a case for setting aside abatement and for impleading legal representatives of the deceased Ibrahim Khan after such an inordinate delay of 3 years. Accordingly, I dismiss the applications I. A. Nos. 401/76 and 489/76 and hold that the appeal has abated as against Ibrahim Khan.

5. Now the question to be considered is whether the appeal has partially abated or has abated as a whole. The suit was for joint decree for possession against all the defendants and not for specific shares against individual defendants. The trial court has also passed a decree for possession against all the defendants jointly and not for specific shares in the land against-individual defendants. The decree is thus joint and indivisible. In such circumstances, if the decree is held to have become final as against Ibrahim Khan and the appeal on behalf of the surviving defendant-appellants is accepted then there would be conflicting decrees. There is thus no escape from the conclusion that the appeal having abated qua the interest of Ibrahim Khan, it must be taken to have abated as a whole.

6. Learned counsel for the appellants relied on Mahabir Prasad v. Jage Ram, (AIR 1971 SC 742) in support of his contention that since all the defendants are jointly interested in the decree, failure to bring on record the heirs ofone of them would not divest the appellate Court of its jurisdiction to pass decree under appeal under Order 41, Rule 4, C. P. C. However, on examination of the authority relied upon by the learned counsel, I find that the facts of that case are completely distinguishable. In that case, it was held that 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. That power may be exercised when other persons who were parties to the proceeding 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. In the present case, Ibrahim Khan was an appellant and on his having died pending the appeal and his legal representatives having not been brought on record and the decree being a joint one part of the decree having become final by reason of the abatement, the entire appeal must be held to have abated. I am fortified in this view by Harihar Prasad Singh v. Balmiki Prasad Singh, (AIR 1975 SC 733).

7. My conclusion, therefore, is that the entire appeal has abated and the same is hereby dismissed as such. However, in the circumstances of the case, there will be no order as to costs.


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