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Harihar Pati Vs. Sisir Kumar Bose and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberM.A. No. 78 of 1952
Judge
Reported inAIR1959Ori41
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 - Order 22, Rules 2, 3 and 11 - Order 41, Rule 4
AppellantHarihar Pati
RespondentSisir Kumar Bose and ors.
Appellant AdvocateG.K. Misra and ;B. Mohapatra, Advs.
Respondent AdvocateP.K. Dhal, ;B. Rath and ;P. Kr. Mohanty, Advs.
DispositionAppeal allowed
Cases ReferredMohammad Asgar Ali v. Narayan Mohapatra
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....s. barman, j. 1. in this matter, the defendant-judgment-debtorno. 1 harihar pati is the appellant before us. the relevant facts, shortly stated, leading to the presentcontroversy are these : on february 12, 1940 one surath nath bose, sisir kumar bose, prafulla kumar bose, bijoy kumar bose, birendra nath bose, and nalinibehari bose (hereinafter referred to as plaintiff-boses) filed a suit in the 2nd munsif'scourt cuttack, being o. s. no. 56 of 1941, againstthe appellant harihar pati: and in the said suit, the plaintiffs joined kunjabehari bose. bipinbehari bose and bankimbehari bose (hereinafter referred to as defendant-boses), as pro forma defendants.the basis of the alleged claim of the plaintiffswas that the defendant no. 1 harihar pati, theappellant before us, was a trespasser in.....
Judgment:

S. Barman, J.

1. In this matter, the defendant-judgment-debtorNo. 1 Harihar Pati is the appellant before us. The relevant facts, shortly stated, leading to the presentcontroversy are these : On February 12, 1940 one Surath Nath Bose, Sisir Kumar Bose, Prafulla Kumar Bose, Bijoy Kumar Bose, Birendra Nath Bose, and Nalinibehari Bose (hereinafter referred to as plaintiff-Boses) filed a suit in the 2nd Munsif'sCourt Cuttack, being O. S. No. 56 of 1941, againstthe appellant Harihar Pati: and in the said suit, the plaintiffs joined Kunjabehari Bose. Bipinbehari Bose and Bankimbehari Bose (hereinafter referred to as defendant-Boses), as pro forma defendants.

The basis of the alleged claim of the plaintiffswas that the defendant No. 1 Harihar Pati, theappellant before us, was a trespasser in respect ofthe suit land, described in the schedule to theplaint in the suit. Incidentally, it is relevant to mention here that the shares of the plaintiff-Boses and the defendant-Boses were specified in the plaint, namely, the plaintiff-Boses jointly having twelve annas share in the suit land and the defendant-Boses the remaining four annas share. The further fact was that there was a mortgage in respect of the land, who was also joined as a defendant in the suit as defendant No. 5. The reliefs, prayed for in the plaint, were -

(i) confirmation of possession; (ii) alternatively, recovery of possession with either -

(a) defendants Nos. 2 to 4 or

(b) defendant No. 5 being the mortgagee who jointly would be entitled to the remaining four annas share.

This substantially, was the nature of the plaint filed in the suit. On June 7, 1941 the suit was dismissed by the 2nd Additional Munsif, Cuttack,. On appeal to the District Judge, the dismissal of the suit by the 2nd Munsif was upheld by an order made on December 23, 1942. Thereafter, on April 16, 1943 the plaintiffs filed a Second Appeal being appeal No. 57 of 1943 from the said decree of dismissal made by the lower Court. In August, 1945, during the pendency of the said appeal No. 57 of 1943, the plaintiff No 1 Surath Nath Bose being the appellant No. 1 in the said Second Appeal died.

But no application was made for causing the legal representatives of the deceased appellant to be made parties, as required under Order 22, Rule 3 read with Order 22, Rule 11 of the Code of Civil Procedure, with the consequence that the appeal so far as the deceased appellant No, 1 was concerned abated, nor was any application made for setting aside the abatement. So far as the deceased plaintiff Surath was concerned, the matter rested there.

2. In due course, on February 27, 1947 the said Second Anneal No. 57 of (943 was heard by Mr. Justice Beevor and it was decreed as follows :

'If is ordered and decreed that this appeal be and the same is hereby allowed. The plaintiff-appellant will be given a decree for possession jointly with such of defendants 2 to 5 as are already in possession to the extent of a twelve anna share in the land in question by excluding defendant No. 1 therefrom.'

3. Subsequently thereafter, it appears that the sons of the said deceased appellant No. 1 Surathnath Bose, along with other plaintiffs, filed an execution case for execution oft e said decree dated February 27, 1947 in Second Appeal No. 57 of 1943 quoted above. The defendant No, 1 Harihar Fati, being the appellant herein, who was the judgment-debtor No. 1 in the execution proceedings filed a Miscellaneous Case being No. 297 of 1950 under Section 47 of the Civil Procedure Code contending that the said decree dated February 27, 1947 was not executable and that the execution case was not maintainable, as due to non-substitution of the heirs of the said deceased appellant No. 1 Surath Nath Bose in the said Second Appeal No. 57 of 1943 in the High Court, the entire appeal abated.

On February 16, 1952, the learned Munsif by an order made by him allowed the said Miscellaneous case, holding that the decree in execution was null and void and therefore not executable for reasons fully stated by the learned Munsif in his said order. Thereafter, the surviving plaintiffs being the decree-holders filed an appeal being Miscellaneous Appeal No. 18 of 1952 from the said order of the learned Munsif. The District Judge by an order made by him on August 8, 1952 gave a finding that no part of the said Second Appeal No. 57 of1943 or the decree made therein dated February 27, 1947 abated and the appellants (decree-holders) were entitled to execute the entire decree and accordingly lie allowed the appeal.

The present appeal to this Court was filed by the judgment-debtor No. 1 Harihar Pati on November 6, 1953. It appears from records that, on an application made on behalf of the respondents 8 to 10 (being defendants 2 to 4), their names were expunged by an order made by this Court dated April 20, 1956. In course of hearing of this appeal before us, upon an application made by the appellant Harihar Pati the said order expunging the names of respondents 8 to 10 from the record was recalled and by our order dated June 30, 1958 therespondents 8, 10 and the legal representatives ofrespondent No. 9 were added as respondents in thisappeal.

At the request of the learned counsel for the respondents herein it was noted that no relief wasclaimed against the other respondents 8 and 10 and the legal representatives of respondent No. 9 and it was made clear that the appellant herein did not claim any relief against these added respondents. These are the facts with which we are concerned in the present appeal.

4. The main points for consideration are -

(a) Whether or not on the facts and in the circumstances of the case the said Second Appeal No. 57 of 1943 totally abated; and

(b) whether or not the said decree dated February 27, 1947 in the said Second Appeal was null and void and consequently not executable.

5. This matter was argued at length on both sides and numerous decisions of different High Courts in India were cited by the learned counsel on both sides. In the ultimate analysis of all these decisions, it appears to me that there are two lines of cases, holding two different points of view. The decisions, on either side, were based on sound reasoning and legal principles. We are, however, not called upon to decide as to the respective merits or demerits of these decisions. We are to decide this matter on the facts and circumstances peculiar to itself.

With this background we considered the decisions of the different High Courts in India. After wading through all these decisions, we have come to hold the view expressed by the Patna High Court (Full Bench) in Ramphal Sahu v. Satdeo Jha, AIR 1940 Pat 346, where it was held that by reason of the provisions of Order 22, Rules 3 and 11, the appeal, in so far as it concerns the deceased appellant, abates and as the abatement, if not set aside, has the force of a decree the matter becomes final as against the deceased appellant.

There is nothing in Order 41, Rule 4 which permits the Court to disturb the finality of the decree as against the deceased appellant. The Patna Full Bench, in that decision, proceeded on the basis that Order 41, Rule 4 suggested that all the plaintiffs or defendants were alive at the time when the decree of the appellate Court was passed. The wording of Order 41, Rule 4 is not applicable to a case where one of the plaintiffs, as in the present case, has died during the pendency of the appeal. Hence, the appellate Court when hearing the Second Appeal No. 57 of 1943 had no power to proceed with the hearing of the said appeal or to reverse or vary the decree in favour of the appellant Harihar Pati herein under Order 41, Rule 4.

In the present case, all the plaintiffs appealed'from the decree of dismissal dated December 23,1942 made by the 2nd Munsif and confirmed bythe District judge in the first appeal of the saiddecree. During the pendency of the Second Appeal No. 57 of 1943, the plaintiff No. 1 Surat Nath Bose died and no substitution was effected within the time or at all, nor any application made for setting aside the abatement. On these facts the appellate Court had no power to reverse or vary the said decree of dismissal made by the lower Court so far as the deceased appellant was concerned.

In other words, such a decree, made by the appellate Court in Second Appeal, could not affect the decree of dismissal made by the lower Court so far as the interest of the deceased appellant Surat Nath Bose was concerned, with the consequence that the lower Court's decree of dismissal would remain infact, whatever might be the decision of the appellate Court in the Second Appeal. The Patna Full Bench decision was based on sound principles and reasoning with which I fully agree in deciding this appeal.

6. There is a more recent decision by another Full Bench of the Patna High Court in Mt. Parwati Kuer v. Manna Lal, AIR 1956 Pat 414 where in course of tae argument before their Lordships, there was much discussion as to the correctness of the earlier Full Bench decision of that Court just cited above, AIR 1940 Pat 340. Their Lordships expressed the view in the later Full Bench decision that, in the matter before them, there was no question of abatement under Order 22, Rules 3 and 11 and therefore the ratio of the decision of the earlier decision of the Full Bench was not applicable and in fact Das C.J. in his judgment, clearly said that it was unnecessary to decide in that case whether the decision of the Full Bench in AIR 1940 Pat 346, was correct or not. There tore, the interpretation ot the law as made by the Full Bench of the Patna High Court in AIR 1940 Pat 346, still stands good and has been left undisturbed.

7. This leads us to the consideration whether on the facts of the present case, where the shares of the plaintiffs, inter se, were undivided and one of them died and there was no substitution, it would result in partial abatement or total abatement.

A case on the point on facts almost similar to the present case was decided by the Calcutta High Court in Arjan Mirdha v. Kali Kumar Chakerbutty, AIR 1923 Cal 294 (i), where the plaintiffs brought a suit to recover possession of some land and in the plaint they specified their respective shares. The first court decreed the suit. Separate appeals were preferred by defendants 4 and 5 to the lower appellate Court. Alter the institution of these appeals the first plaintiff died.

There was delay in substituting his heirs and the lower appellate Court held that each of the appeals abated as against the plaintiff No. 1 respondent. When the appeals came up for hearing, the argument was advanced that they were no longer competent and the learned Judge gave effect to that contention and dismissed the appeal as against all the respondents. Defendants 4 and 5 thereupon preferred appeals to the High Court where it was contended that the lower appellate Court was wrong inasmuch as the plaintiffs had specified their shares.

On these facts as stated above, it was held that where during the pendency of an appeal by the defendant against a decree for joint possession of land, one of the plaintiff respondents dies and his heirs are not substituted within the time allowed by law, the appeal abates not only against the deceased respondents but also against all other respondents. The fact that in the plaint, the plaintiffs specified their respective shares, would make no difference, as the mere specification by the plaintiffs that each individual plaintiffs share is so much does not alterthe nature of the decree, I am convinced of the sound principles underlying this decision which is applicable to the present case.

8. The learned counsel for the respondents cited before us certain decisions in support of his argument, that in any event the appeal by the surviving plaintiffs, will not abate as a whole but there may be only partial abatement. All these cases, in my opinion, are distinguishable from the facts of the case before us. Now we proceed to deal with these cases, cited before us, as follows:

In Hari Charan Moulik v. Kalipada Chakravarty AIR 1929 Cal 519, three plaintiffs brought a suit in ejectment against certain defendants who had been occupying the land in suit by erection of huts and living therein by permission of the plaintiffs, that they had been in the plaintiffs' employ and the defendants had procured an entry to be made in the Record-of-Rights in which they were recorded as tenants of defendant No, 3. The plaintiffs' case was that the permission of continuing the occupation had been determined and thereupon the plaintiffs brought their suit for ejectment of defendants 1 and 2.

The first Court dismissed the plaintiffs' suit holding that the defendants had been in possession adversely for a sufficiently long period to bar the plaintiff's claim. An appeal was filed by all the three plaintiffs to the lower appellate Court and then one of the plaintiffs died. No steps were, however, taken by the other plaintiffs-appellants to have the representatives of the deceased plaintiff added as parties appellants. In these circumstances time having elapsed so that the appeal as regards the deceased plaintiff had abated, the question arose in the lower appellate Court whether the whole appeal had become incompetent.

The learned Additional District Judge being of opinion that the whole appeal had become incompetent dismissed it without entering into the merits. From that decision the plaintiffs appealed to the High Court. On the facts of that case, what was determined as regards the deceased plaintiff was that he was not one of the three persons entitled to eject the defendants.

But Rankin C. J. in the judgment expressed that it is a different matter when the suit is for a declaration in that, case, it may well be that much anomaly would be produced by endeavouring to prove one state of things for one purpose and another state of things for another purpose. In the case before us, the suit being for confirmation of possession was essentially for declaration of the plaintiffs' title. As Rankin, C. J. in the Calcutta case referred to above expressed, much anomaly would have been produced in endeavouring to split up the joint title of the plaintiffs having shares undivided inter se. I do not think that the Calcutta decision helps the respondents in any way.

Following the said Calcutta decision, the Patna High Court in Sankru Mahto v. Bhoju Mahato, AIR 1936 Pat 548 upheld total abatement on somewhat different considerations. The appeal before the Patna High Court arose out of a suit instituted by the plaintiffs, seven in number, all being Kurmi Mahtos of Chota Nagpur, for recovery of possession of sonic plots of land on the allegation that they were part of their joint occupancy holdings and that the defendants wrongfully got their names recorded in respect of them in the settlement records and that from a portion they were dispossessed in consequence of a proceeding under Section 145 Cr. P. C. and from the rest the defendants forcibly dispossessed them.

The defendants disputed the plaintiffs' title to the land in question and pleaded limitation. The trial Court dismissed the suit. The plaintiffs preferredan appeal to the District Court. During the pendency of the appeal, plaintiff-appellant No. 2 died and defendant-respondent No. 8 died. No application was made for substitution of the names of the representatives of the deceased appellant and the deceased respondent. When the appeal came up for hearing before the learned Subordinate Judge applications were made on behalf of the remaining plaintiff-appellants to the effect that the heirs of the deceased appellant and the deceased respondent were already on the record. It was alleged that under the tribal custom which governs the parties the deceased appellant No. 2 was succeeded by his brother appellant No. 1 and that respondent No. 8 also was succeeded by his brother already on the record. A preliminary objection was raised on behalf of the respondents that the appeal of appellant No. 2 and the entire appeal against respondent No. 8 had abated on account of no application for substitution within the period allowed by law and that accordingly having regard to the nature of the suit, the whole appeal had abated.

On these facts it clearly appears that the representatives of the deceased plaintiff-appellant No. 2 were already on the record, in that under the tribal custom which governs the parties appellant No. 2 was succeeded by his brother appellant No. 1 and the respondent No. 8 was also succeeded by his brother already on the record. One further aspect in the Patna case was the distinguishing feature that there it was not a declaratory suit as in the present case but it was a suit against the defendants for wrongfully getting their names recorded in respect of them in the settlement records. The decision in the Patna case would have been different if it was a suit of declaratory nature, on the principles laid down by Chief Justice Rankin in the Calcutta decision which the Patna High Court followed namely that it would have been a different matter if it was a declaratory suit.

The next case cited on behalf of the respondents was also a decision of the Patna High Court in Firangi Ram Modi v. Basudeo Modi, AIR 1946 Pat 132, This was a case of total abatement and does not help the respondents. Rather, it supports the contentions made on behalf of the appellant.

On partial abatement, another case cited by the learned counsel for the respondents was a decision of the Lahore High Court in Nanak v. Ahmad Ali, AIR 1946 Lah 399 (KB). The facts shortly in this case were that the plaintiff-respondent brought a suit for cancellation of a sale deed executed by one C defendant No. 1, in favour of N and K, defendants Nos. 2 and 3. This suit was dismissed by the Court of first instance. The lower appellate Court allowed the plaintiff's appeal and decreed his claim. Against this decree N and K defendants Nos. 2 and 3 filed an appeal to the High Court.

When the appeal came up for hearing a preliminary objection was taken on behalf of the plaintiff-respondent that, N one of the two appellants having died and that no application for substitution having been made, the appeal had accordingly abated and further that inasmuch as there was a joint decree against N and K the appeal should be deemed to have abated in its entirety and could not proceed at all- In view of the conflicting decision the matter was referred to a Full Bench for consideration of the question whether the abatement should be allowed in total dismissal of the appeal or whether the appeal of the remaining surviving appellant K could still proceed.

I have carefully considered the judgment of the Full Bench delivered by Achhru Ram J. On careful consideration. I take the view that the Full Bench in that case decided the question on certain peculiarfeatures of the case on facts. There the suit was for cancellation of a sale deed by G in favour of the defendant-appellants N and K. The Full Bench went on the basis that although in the sale deed the shares of the vendees N and K were not specified, that however did not mean that they could be regarded as holding the property or claiming title thereto as joint tenants in the sense in which that expression is understood in English law.

The Full Bench further took the view that joint tenancy was wholly unknown in this country and when N and K jointly purchased the house they must be deemed to have acquired a tenancy in common. Furthermore, in the absence of specification of share in the sale deed, N and K should be presumed to have purchased the house in equal shares. The Full Bench also fook into consideration paragraph 2of Section 45 of the Transfer of Property Act which provides that in the absence of evidence as to the interests in the fund to which the co-vendees N and K were respectively entitled or as to the shares of the consideration which they respectively advanced, N and K shall be presumed to be equally interested in the property.

This aspect of the matter gives the Lahore High Court decision a completely different colour from the case that we are considering in the present appeal. Furthermore, as co-vendees in equal shares as aforesaid they had each independent right to appeal against the decree. The decree became final against the non-appealing deceased defendant N and the said decree was only a decree for his ejectment. The effect of the possible success of the surviving co-defendant appellant K would be that he cannot be ejected. Both the defendant-appellants N and K claiming under wholly independent rights, one will not be affected by the decree passed against theother.

In that view of the matter the Lahore Full Bench was perfectly right in finding in favour of partial abatement on peculiar features of the case on facts as stated above. In the present appeal before us the position is different. It is a case of the plaintiffs as members of the Dayabhaga Hindu joint family holding undivided shares in the property in suit against one trespasser, namely the appellant Harihar Pati.

Furthermore, the present case having been instituted essentially for declaration of title in favour of the plaintiffs as against the trespasser, there can be no question of partial abatement because that would certainly lead to inconsistent and conflicting decrees and the anomaly of producing one state of things forone purpose and another state of things for another purpose, cannot be escaped or avoided on the facts of the case before us, if we were to find in favour of partial abatement.

In this view of the matter, I cannot accept thecontentions of the respondents in support of partial abatement.

9. Now we proceed to discuss the possibility of contradictory decrees if an appeal is allowed to proceed after abatement, in a case like the one before us.

On the possibility of contradictory decrees, the position, on facts in the present case was this: Admittedly, so far as the appeal of the plaintiff-appellant No. 1 Surat Nath Bose was concerned, it had abated during the pendency of the Second Appeal. The decree passed by the District Judge, confirming the decree of dismissal by the learned Munsif, however, still stands and according to that decree the plaintiffs' suit was dismissed. The Second Appeal No. 57 of 1943 of the surviving plaintiff-appellants was allowed to continue after abatement without substitution and the appeal was ultimately allowed by the High Court in appeal giving the plaintiff-appellant decree for possession jointly as stated therein.

Here the contradiction arises in this way: there is on the one hand the District Judge's decree of dismissal against the deceased plaintiff which became final and still remains subsisting; while on the other hand there is the High Court decree, on appeal, in favour of the surviving plaintiffs. Thus an anomaly has been produced by creating one state of things for one purpose and another state of things for another purpose.

For authority on the theory of contradictory decrees, while looking for guidance from decisions of different High Courts in India, I come to find a clear exposition of the law on the subject made by a Division Bench of our own High Court in Orissa. In fact, my learned brother Rao J. sitting with Narasimham J. (as he then was), decided this point, making a very lucid exposition of the law in Ananga Bhusan Samant v. Uchhab Sahu, ILR (1955) Cut 425: ((S) AIR 1955 Orissa 179) where my learned brother Rao J. observed as follows (page 430 para 9 of ILR Cut): (at p. 180 para 9 of AIR):

'The effect of reading Order 22, Rule 4, Sub-rule (3) with Order 22, Rule 11 is that where within the time prescribed by law no application is made to implead the legal representatives of the deceased respondent, the appeal shall abate as against the deceased respondent and an order that the appeal abated against the deceased respondent No. 4 had already been made. Though there is no provision in the Civil Procedure Code that in such cases the entire appeal abates as a whole, the statutory provision being only that the appeal abates as against the deceased respondent, the question whether the partial abatement leads to an abatement of the appeal in its entirety depends upon general principles of law.

These principles recognised in various decisions are that if the case is of such a nature that the absence of the legal representatives of the deceased respondent prevents the Court from hearing the appeal as against the other respondents, then the appeal abates in toto.

Whether the appeal can or cannot proceed in the absence of the legal representatives of the deceased respondent is dependent upon the principle whether in the event of the appeal being allowed as against the remaining respondents there would or would not be two contradictory decrees in the same litigation with respect to the same subject-matter. A court should not be called upon to make two inconsistent decrees about the same property, and in order to avoid conflicting decrees the Court has no alternative but to dismiss the appeal as a whole.'

There cannot be any better exposition of the principles underlying the theory of contradictory decrees. The same view was also held in a recent decision by the Assam High Court in Sonahar Ali v. Mukbul Ali, AIR 1956 Assam 164 (Sarjoo Prosad C. J. and Ram Labhaya J) where the facts shortly were these. The three appellants in the lower appellate Court were claiming title on the basis of title deeds which were executed in their favour jointly. There was no dispute between the defendants as regards their share and there was neither need nor occasion for determination of their shares inter se.

Title was jointly acquired and the suit was jointly resisted. The decree in favour of the plaintiffs against these three defendants was joint, the shares of the defendants not having been ascertained. After the death of defendant No. I these shares could not be ascertained. No ascertainment of the shares between the cosharers was possible in the absenceof one or more of the cosharers. On these facts it was held as follows:

'All the cosharers have to be brought on the record before their respective shares can be determined. The decree in this case therefore was joint and also indivisible as after the death the ascertainment of shares was not possible. The abatement therefore would be entire, for this joint decree could not be set aside against two and allowed to stand against one who had died. This would give rise to conflicting decrees. In the circumstances there was no escape from the proposition that there was entire abatement and this appeal could not have been disposed of on the merits in the absence of the representatives of the deceased appellant.'

This case again is clearly an authority for the proposition in support of the appellant's contentions. In the case before us also, it was a joint and indivisible decree and in the absence of the deceased plaintiff or of his legal representatives, after the death of the deceased, it was not possible to decide the matter because any endeavour to do so would give rise to contradictions and anomalies.

In the decision of the Patna High Court Ramdhari Singh v. Rambharosa Singh, AIR 1955 Pat 237, Imam C. J. (as he then was) in his judgment laid down a test, in such cases, which was as follows:

'One of the tests as to whether an appeal as a whole has abated is as to whether if the appeal succeeds there will be in existence conflicting decrees. If such be the position, then the appeal as a whole abates and not partially. In my opinion, different considerations arise between the abatement of a suit and the abatement of an appeal because in a suit if there is an abatement it is before the passing of a decree and the question of conflicting decrees coming into existence does not arise....It seems to me that no substitution of legal representatives in place of the deceased appellant 2 having taken place, in the circumstances of this case it must be held that the appeal as a whole has abated and not merely that the appeal of the deceased appellant 2 only has abated.'

This aspect of the argument was most convincing to us and the learned counsel for the respondents could not dislodge the view that we have been constrained to take in this matter. There is no doubt as to the position that, on the facts before us as appear from records there is no escape from the anomaly of two contradictory decrees, namely, one decree in favour of the deceased appellant made by the lower appellate Court and an inconsistent decree made by the High Court on second appeal, as actually happened in the present case.

10. The learned counsel appearing for the respondents contended that after the death of the plaintiff appellant Surath Nath Bose, the right to sue survived to the remaining plaintiff-appellants being persons who could have maintained such a suit initially and that such right to sue did not survive to the legal representatives of the deceased appellant. On this, he sought to make out a point that Order 22, Rule 3 did not apply to the facts of this case, because it was not a case where the right to sue did not survive to the surviving plaintiffs-- his case was that the right to sue, in fact, survived to the surviving plaintiffs after the death of the deceased plaintiff. In support of his contentions be relied upon a Privy Council decision V. Venkatanarayana Pillai v. Subbammal 42 Ind Anp 125: (AIR 1915 PC 124) and also a decision of the Allahabad High Court in Muhammad Ekram v. Mirza Muhammad, AIR 1935 All 106.

But there is a complete answer to this argument and it is this. In the present case, the plaint in thesuit was so framed that the plaintiffs, all in their respective individual capacity and not in their representative capacity, sued the defendant No. 1 Harihar Pati. So much so that even those of the members of the family, who did not want to join them as plaintiffs in the suit, were added as pro forma defendants being defendants 2 to 4. To file a suit against a trespasser, it was not necessary for all the co-owners or co-sharers in the property to have joined as plaintiff.

It would have been quite enough for any one of them to tile the suit, in his representative capacity for himself and on behalf of others. This view is, supported by a decision of this Court in Mohammad Asgar Ali v. Narayan Mohapatra, ILR (1958) Cut 31: (AIR 1958 Orissa 101) where Mr. Justice Mohapatra, delivering the judgment, observed as follows (page 34 para 6 (of ILR Cut) : (at p. 102 para 6 of AIR)):

'.... We propose to deal with this position oflaw as to whether the plaintiff being a co-sharer earnstill maintain the suit in ejectment as against thetrespassers. In our view it is practically well settled and accepted by almost all the High Courts inIndia that so far as trespassers are concerned oneof the co-sharers can maintain a suit in ejectment.It appears clear that the cosharer is interested inevery inch of the land as a cosharer jointly alongwith the others and he has got the right to resistany encroachment on the joint land and to enforcesuch right in a Court of law as against trespassers toevict them.

It must be made clear that a decree obtained by a co-sharer in such a suit must be on behalf of all the co-sharers and must necessarily enure to the benefit of all. Each co-sharer, in my view, owes a duty to the other cosharers to protect not only his own interest but the interest of the entire body of the cosharers as against the third party trespassers.'

If the plaintiffs so framed the suit filed by one or more of them (not all) in their representative capacities, there would not have been this difficulty which now the law confronts them. Once they chose to file the suit in their respective individual capacity and during the pendency of the Second Appeal, one of them died, there was no escape from the position that the legal representatives of the deceased plaintiff must be brought on the record to represent the deceased failing which there must be abatement with all its legal consequences.

11. Furthermore, it must be noted that Rules 2 and 3 of Order 22 are mutually exclusive. If under Rule 2, the right to sue survived to the plaintiffs alone, then the surviving plaintiffs-respondents could have taken the benefit of Rule 2; but in the present case it was not that the right to sue, after the death, of the plaintiff Surath Nath Bose, survived to surviving Base plaintiffs alone but it survived also to the legal representatives of the deceased plaintiff Surath. Nath Bose because in the suit as framed, the plaintiffs including the deceased were parties in their respective individual capacity and not representative capacity, with the result that Rule 2 of Order 22 does not apply.

From this it also follows that because after plaintiff Surath's death, the right to sue does not survive to the surviving Bose-plaintiffs alone, but also to the legal representatives of the deceased plaintiff, then Rule 3 in terms will apply with all its requirements and legal consequences for non-compliance with the same, namely, abatement. In the present case, as I have already discussed there can be no partial abatement. Having regard to the frame of the suit and the indivisible and joint nature of the decree, we find that it was a case of total abatement.

12. We, therefore, find that on the facts and in the circumstances of the case, the said Second Appeal No. 57 of 1943 totally abated. In view of this finding, it must follow that the decree dated 27-2-1947 in the said Second Appeal, which has itself already abated, must be null and void and consequently not executable.

13. This appeal is, therefore, allowed; the judgment dated 8-8-1952 and decree dated 16-8-1952 of the learned District Judge are set aside and the order of the learned Munsif dated 16-2-1952 is hereby upheld. Under the circumstances of this case, each party will bear its own costs throughout.

P.V.B. Rao, J.

14. I entirely agree.


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