S. Acharya, J.
1. One of the two plaintiffs has preferred this appeal. The other plaintiff (plaintiff No. 1) Majhia Majhi, died during the pendency of Title Appeal No. 61/71 filed by the defendant in the lower appellate court. It is not necessary for me in this appeal to state in detail the respective eases put forward by the plaintiffs and the defendant. Suffice it to say that the plaintiffs' suit was for declaration of title to and recovery of possession of the suit land on the averments that the plaintiffs are the owners of the suit land and while they were in possession of the same the defendant forcibly dispossessed them from the same in Jestha, 1969. The defendant claims the suit land on the allegation that he has been in long possession of the same and that the plaintiffs do not have any right, title and interest therein.
2. The trial court declared that the plaintiffs had right, title and interest over the suit land, and that they were entitled to recover possession of the same through court.
Against the said decision the defendant filed Title Appeal No. 61/71 in the lower appellate court. When the said appeal was pending the Advocate for the plaintiffs-respondents in the said appeal, filed a memo in the said court stating therein that plaintiff No. 1 Majhia Majhi, respondent No. 1 in the said appeal, died on 20-7-72 leaving his widow Jili Dei and his minor son Banamali Majhi, the heirs and legal representatives of the said deceased plaintiff; and that as the defendant-appellant had not taken any steps to substitute the said legal representatives of the deceased plaintiff within the prescribed time the appeal abated in its entirety. The Advocate for the appellant filed a memo stating therein that plaintiff No. 2 was the only heir and successor of the deceased plaintiff-respondent No. 1, and he being already on record it was not necessary for the appellant to substitute the legal representatives of deceased Majhia Majhi.
The appellate court on its own appreciation of the matter held that the appeal did not abate, and by its order dated 15-12-73 it directed that the name of the deceased plaintiff No. 1, respondent No. 1, in that appeal, be deleted from the record. Accordingly, the name of the deceased plaintiff was deleted. On the same day the court allowed the appeal on merits and set aside the judgment and decree of the trial court, thereby dismissing the suit in its entirety. Hence this appeal by plaintiff No. 2 only.
3. It is contended by Mr. S. Misra-2, learned counsel for the appellant, that the decree of the court below is a nullity in law as the appeal in that court had abated in its entirety because of the fact that the legal representatives of the deceased plaintiff No. 1 Majhia Majhi, who died on 20-7-72 during the pendency of that appeal in the lower appellate court, had not been brought on record. In this court one Jili Dei has filed an affidavit on 13-8-74 stating that plaintiff No. 1 (Majhia Majhi), respondent No. 1 in Title Appeal No. 61/71 in the lower appellate court, was her husband and the father of Banamali Majhi, who is minor child of about 5 years old and is living under the care and custody of the deponent. In paragraph 2 of the said affidavit it is stated that the said Majhia Majhi died on 20-7-72 leaving behind him his wife, Jili Dei, and his son Banamali Majhi as hie legal heirs, and they have not been substituted in the lower appellate court. A copy of this affidavit was served on 8-5-77 on the Advocate appearing for the defendant-respondent. The respondent was granted time to file counter to the said affidavit, if any, by 20-6-77, but no counter to that affidavit has been filed till now. On 20-6-77 Mr. Mohanty, the learned counsel for the respondent, filed a memo in this Court stating that the lawyer who appeared in the court below for the respondent informed Mr. Mohanty that the defendant was lying ill since a month prior to the filing of the said memo and was not in a position to understand and state anything, and so Mr. Mohanty could not get any instructions from his client to file a counter to the aforesaid affidavit filed by Jili Dei. Stating all that it is mentioned in the said memo that 'the matter may be disposed of in the usual course'. The statements in the said memo are not supported by any affidavit. Even if the respondent's illness, as stated in the said memo, was correct, it would not have been difficult to file an affidavit of some other person to controvert the facts asserted in Jili Dei's affidavit if the facts stated therein were incorrect. The facts asserted in Jili Dei's affidavit get corroboration from the facts stated in the memo filed on behalf of the plaintiffs in the court below, and those facts stand unassailed.
4. On the said unassailed facts it has to be held that respondent No. 1 in Title Appeal No. 61/71 in the lower appellate court died during the pendency of the appeal in that court leaving behind him his wife and son who were not impleaded in that appeal by the appellant in that court even though the respondent's lawyer informed that court by a memo about the above facts. Accordingly, the judgment and decree of the trial court, so far as they relate to the deceased plaintiff No. 1 and his legal representatives, stand confirmed and could not have been altered or changed in any way in the said appeal. The trial court decreed the plaintiffs' suit by declaring the plaintiffs' right, title and interest in the suit land, and directed delivery of possession of the suit property in favour of the plaintiffs. Thus the said declaration and direction of the trial court hold good so far as the same relate to the legal representatives of the deceased plaintiff No. 1. That portion is not affected by the decision of the court below allowing the defendant's appeal and dismissing the suit as the said legal representatives were not made parties to that appeal. Thus the position is that the said legal representatives have right, title and interest in the suit property and they can take delivery of possession of the same from the defendant, whereas the other plaintiff who with the said legal representatives jointly claims the suit property, cannot recover possession of the same from the defendant. So the defendant can resist delivery of possession in favour of one plaintiff but not in favour of the other. The appellate court in fact has gone beyond its jurisdiction in declaring that 'the plaintiffs' have no title to the suit property, as in the appellate court there was only one plaintiff on record and that court had no jurisdiction to decide anything about persons who were not before it. Thus there are now two conflicting and contradictory decrees in respect of the same property. This anomalous position was created as the wife and the son of the deceased plaintiff were not impleaded in the court even though information to that effect was given by the surviving plaintiff. In State of Punjab v. Nathu Ram, AIR 1962 SC 89 it has been held that (at p. 90)--
'Courts will not proceed with an appeal when the success of the appeal may lead to the Court's coming to a decision which be in conflict with the decision between the appellant and the deceased respondent, and therefore, which would lead to the Court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the appellant and the deceased respondent'
In this case a clear case of conflicting and contradictory decrees is made out as the legal representatives of the deceased plaintiff were not impleaded in the appeal in the court below. That being so, the appeal in the lower appellate court could not have proceeded for determination and it abated in its entirety. The impugned judgment therefore is clearly a nullity in law and has to be set aside.
5. Mr. Mohanty, the learned counsel for the respondent, submitted that it was for the plainiff to furnish authentic information on oath to the court below about the death of the deceased plaintiff and the legal representatives left behind by him; and as the plaintiff did not furnish such information the defendant had no legal obligation to substitute the legal representatives of the deceased plaintiff. Mr. Mohanty could not point out any provision in the Civil Procedure Code to substantiate his above contention, and I do not see any weight and substance in the said contention. In this case, however, as stated above, the surviving respondent's lawyer by a memo informed the court below about the date of the death of the other respondent and about his surviving legal representatives. If the appellant did not know about the death of the said respondent and about his legal representatives he, on the above information furnished by the surviving respondent, should have made proper enquiry to ascertain all necessary particulars about that matter. If thereafter he wanted to take the stand that the deceased respondent was adequately represented in the appeal in the lower appellate court and that he did not have any other legal representatives to be impleaded in that appeal, it was for him to refute on oath the facts stated in the memo filed on behalf of the plaintiffs. No such affidavit was filed in this case and the appellate court allowed the appeal to proceed on the defendant's memo that the deceased respondent was adequately represented in the appeal, though that was not a fact as is evident from the unassailed affidavit of Jili Dei referred to above.
It is of course true that the appellant in the court below was not required to make regular enquiries about the health end the existence of the respondents, but all the same when the aforesaid information about the death of one of the respondents was furnished by the other surviving respondent, the appellant should have made proper enquiry about the correctness of the information furnished in the said memo and should have filed proper petitions in the court below for the substitution of the legal representatives. The surviving respondent did not have any legal obligation to furnish the said information on oath, and failure to implead the actually existing legal representatives in spite of the information furnished to that effect has in law abated the appeal.
6. The contention of Mr. Mohanty that the appeal being a continuation of the suit it was for the surviving plaintiff to have applied in time for the substitution of the legal representatives of the deceased plaintiff is without any force or substance. Rule 4 read with Rule 11 of Order 22, Civil Procedure Code would read as follows:--
'Where one of two or more respondents dies and the right to sue does not survive against the surviving respondent or respondents alone or a sole respondent or a sole surviving respondent dies and the right to sue survives, the Court on an application made in that behalf shall cause the legal representative of the deceased respondent to be made a party and shall proceed with the suit.'
By not impleading the legal representatives not only there was the possibility of two conflicting and contradictory de-crees coming into existence with regard to the same subject-matter, but in fact such decrees have come into existence. That being so, the appeal could not have proceeded in the court below without bringing the legal representatives on record. So it was for the appellant to take steps for the substitution of the legal representatives, and the respondent was not to take any such step in that court. Thus the above contention of Mr. Mohanty is equally frivolous. The court below on 15-12-73 decided that the appeal did not abate and on the very same date the impugned order allowing the appeal was passed by the court below. The appellant, therefore, did not have any time to make any move against the order of the court below. Moreover, the legal question of abatement can be taken up in appeal, if on the fact on record it can be shown that the suit in the trial court or the appeal in the lower appellate court had in fact abated due to the non-substitution of the legal representatives of the parties.
7. On the above considerations I find that the impugned judgment of the court below is a nullity in law, and hence it is hereby set aside.
8. The appeal accordingly is allowed with costs.