R.K. Das, J.
1. This is a plaintiffs' appeal against the reversing judgment of the Additional District Judge of Berhampur dismissing the plaintiffs' suit for permanent injunction and damages.
2. The plaintiffs' case is that they owned and possessed the suit lands for rendering service as washermen in the whole Inam village Davanidhipur and have been in possession and enjoyment thereof since the time of their fore-fathers in lieu of their services. On 29-11-54 defendants 1 to 14 forcibly removed the paddy sheaves from about three Bharanams of suit lands and thus put them to a loss of Rs. 60/-. The plaintiffs thus filed the present suit for permanently restraining the said defendants from interfering with their possession and also for recovery of damages of Rs. 60/- being the money value of the crops removed.
3. The case of the defendants 1 to 14 was that no lands were assigned to the plaintiffs or their ancestors as 'Washerman Service Inam' and the plaintiffs were never in possession of the suit lands which all along were in Khas possession of the villagers and the plaintiffs were being paid only the usufruct of the suit lands towards their wages as washermen.
4. The trial Court disallowed the claim of the plaintiffs, for some mesne profits of Rs. 60/-but gave them a decree by permanently injucting defendants 1 to 14 from entering into the suit lands.
5. Against this decision all the defendants preferred an appeal and the appellate Court dismissed the plaintiffs' suit and allowed the appeal of the defendants. During the pendency of the appeal Kalia Goud (defendant No. 8) who was also an appellant in the lower appellate Court died on 8-7-1959 but his legal representatives were not substituted. So the appeal abated so far as he is concerned and no steps were taken for setting aside the abatement.
6. At the hearing of this appeal a preliminary objection was raised by Mr. Misra, learned counsel for the appellants, contending that the whole appeal has abated in the lower appellate Court as the suit was based upon a joint and indivisible cause of action and the presence of the legal representatives of the deceased defendant 8 was essential for the determination of the appeal. In support of his contention, he drew my attention to paragraphs 3 and 4 of the plaint which state that the cause of action and the nature of relief claimed as against defendants 1 to 14 were one and indivisible.
7. Mr. Mahanty, learned counsel for the respondents, however, contended that the plaintiffs' suit being one for injunction against the defendants-trespassers, the mere fact that one of the trespassers has died and his legal representatives have not been brought on record, does not disentitle the Court to pass a decree in favour of the plaintiffs as against the other trespassers, the nature of the decree being personal. His further contention was that the deceased defendant No. 8 as also defendant 7 were mere labourers and had nothing to do in common with the other defendants, and as such the appeal may as well have proceeded so far as the other defendant-appellants were concerned even without the legal representatives of the deceased defendant 8 being brought on record.
8. There can be no doubt that the appeal has abated so far as defendant-8 is concerned. The only question is whether the partial abatement of the appeal in respect of defendant 8 would render the appeal to abate as a whole. This question whether the partial abatement would lead to the abatement of the appeal in its entirety, would depend upon the general principles of law and the facts of each case. If the case is of such a nature that the absence of the legal representatives of the deceased would prevent the Court from hearing the appeal even in respect of the others, and in the event of the appeal being heard and allowed, an inconsistent and inoperative decree would result with respect to the same subject-matter in litigation, then the appeal is bound to abate as a whole.
9. According to Mr. Mohanty in a case of trespass, there is no possibility of any such inconsistent decrees being passed as the Court would pass the decree only against such trespassers as are on record before it. In support of his contention he relied upon a decision of the Allahabad High Court reported in AIR 1934 All 716, Shibban v. Allah Mehar where a Division Bench of that Court held that in case on the death of one of the trespassers, if his heirs are not brought on record, there would be no legal difficulty in passing a decree against the remaining trespassers who are before the Court, the decree against such trespassers being in their personal capacity.
The other decision cited by Mr. Mohanty is a case reported in AIR 1916 Lah 133 (2) Bishen Das v. Ram Labhaya, where their Lordships have held that the liability of joint tortfeasors is joint and several and consequently on the death of one, the cause of action survives against the other. Mr. Mohanty also relied upon Note No. 60 of Notes of Cases in 1961 of the Nag LJ p. 20 Kasinath v. Nago where the learned Single Judge relied upon the aforesaid decisions of the Allahabad and Lahore High Courts and held that the act committed by the defendants was a tortious act jointly committed as joint tort-feasors and that the liability of each was both joint and several and there was no impediment against the plaintiff continuing his suit against the other defendants.
10. Our High Court, however, has held a contrary view in Second Appeal No. 107 of 1957 Sukal Jena v. Lokenath Swain, (unreported) wherein it was contended on behalf of the plaintiffs that the defendants being joint tort-feasors were jointly and severally liable and the plaintiff therefore could well choose to drop out one of the tort-feasors and seek his remedy against the rest and the death of one of the defendants will not affect the decree so far as the other defendants are concerned. His Lordship negatived this contention, and held that as the suit was based upon a joint and individual act of trespass and joint and individual cause of action, there was no question of several liability so that the plaintiff could choose his remedy against the rest of the defendants. This decision fully supports the contention of Mr. Misra.
11. Mr. Misra further relied upon a decision reported in AIR 1953 Cal 588 Hakir Mahamed v. Abdul Majid, where relying upon a previous Division Bench decision of that Court reported in AIR 1928 Cal 138, Arunadoya Chakrabarty v. Mahomed Ali their Lordships held that where the legal representatives of a co-trespasser who participated in the trespass have not been brought on record, the whole suit shall abate. That was a case where the plaintiff prayed for a mandatory injunction against all the trespasser-respondents.
12. In Full Bench decision of the Patna High Court reported in AIR 1940 Pat. 346 (FB), Ram Phal Sahu v. Satdeo Jha, it was held that the appellate Court has no power to proceed with the hearing of an appeal and to reverse or vary the decree in favour of all the plaintiffs or the defendants under Order 41, Rule 4 of the C. P. C. if all the plaintiffs or defendants appealed from the decree and one of them died and no substitution was effected within time and the application for setting aside the abatement so far as the deceased appellant was concerned had been refused always assuming that the decree appealed from proceeded on a common ground to all the plaintiffs or defendants.
13. In the present case it is beyond doubt that the cause of action was a joint and indivisible one and the decree appealed against in the lower appellate Court was based upon a common ground to all the plaintiffs and the defendants. Thus, it must be held that the decree passed by the lower appellate Court is not only a nullity against deceased defendant No. 8, but also against all. Under the circumstances the appellate Court had no power to reverse the decree passed in favour of the plaintiff by the trial Court, as no substitution was effected so far as the deceased-defendant-appellant was concerned and no steps were taken for setting aside the abatement.
The decree of the lower appellate Court isthus set aside; and the appeal is allowed with costs.