1. Plaintiffs' case is that they were the co-sharer Makadams of village Raiguri Besudeipur The suit property was the Nijjot land belonging to entire body of Makadams. Rajan Bhoi and Gaji Bhoi, who are brothers, were in enjoyment of the disputed land on Jagir The condition was that they would be liable to eviction on non-performance of services. The suit land was recorded in the name of Rajan and Gaji in the Nijjot Khata No. 23. Both of them died without leaving any heirs soon after the last settlement. The Makadams took Khas possession of the property. In T. S. No. 42 of 1931 in the court of the Subordinate Judge. Cuttack the disputed land was allotted to the share of the plaintiffs, who are in possession of the same all through Defendant No. 10 is the son of Bula Behera, He described himself as the son's son of Gaji Bhoi and executed a registered sale deed Ex. B on 24-4-69 in favour of defendants 1 to 9 though he had no right, title and interest. The transferees threatened to disturb the possession of the plaintiffs on 11-6-59. The suit was accordingly filed for declaration of title, confirmation of possession and in the alternative for recovery of possession.
The defence case is that the disputed property constitutes the homestead of Gaji and Rajan Bhoi, who were the grand fathers of defendant No. 10 and all through they are residing in the house. Rajan and Gaji died after the settlement After their death Gaji's son Laxman Bhoi and Rajan's widow. Rachi continued to live in the suit house. After Laxman's death the defendant No. 10 was in possession. Plaintiffs' also accepted defendant No. 10 as a tenant, but no rent was being paid as it was rent free on account of the service tenure.
2. The learned trial court decreed the suit declaring plaintiffs' title to the suit property and directing recovery of possession. Against this decree the defendants Nos. 2 to 9 filed title Appeal No. 21 of 1962 before the District Judge, Puri impleadtng defendant No. 10 as respondent No. 4, defendant No. 1 was not implead-ed as party to the appeal. In the memorandum of appeal a ground was taken that the defendant No. 1 died on 17-6-61 long before the hearing of the suit which was concluded on 11-1-62, It was contended before the learned District Judge during argument that the entire suit abated in the trial court as the legal representatives of defendant No. 1 were not made parties to the suit. The learned District Judge did not go into the question of abatement and expressed himself thus:
'The learned Advocate for the appellants has contended that defendant No. 1 having died on 17-6-61 and the trial of the case having concluded on 11-1-62 without bringing the L. Rs. of defendant No. 1 on record, the entire suit abates. The learned Advocate for the respondents has submitted that he has no instructions if defendant No. 1 is at all dead, and if so when. The appellant's learned Advocate has, therefore, submitted that in case the findings on merits in this appeal go against him, the suit should be remanded to the trial court for a finding as to the abatement of the suit, But I do not think that such a course need be followed If defendant No. 1 died as alleged by the appellants and if a decree was passed against a dead man, the question whether such a decree is a nullity in its entirety or in part can always be agitated at any time. The suit need not be remanded for a decision on that point now. If, on the other hand, defendant No. 1 is not dead and is not made a party to this appeal, the appellants take their own risk. So in any view of the matter a remand is not called for.'
After recording his view on the merits of a case, the learned District Judge allowed the appeal and dismissed the plaintiff's suit.
3. The learned District Judge was wholly confused and misconceived the legal position. In the memorandum of First Appeal a ground was taken that defendant No. 1 died on 17-5-01 during the pendency of the suit. The appellants committed the blunder in not filing an affidavit in support of such an assertion and in not serving a copy of the memo of the appeal bringing to the notice of the plaintiffs the assertion regarding the factum of death of defendant No. 1. Plaintiffs' Advocate rightly urged before the lower appellate court that he had no knowledge as to the death of defendant No. 1. When the matter was pointedly brought to his notice, the learned District Judge should have called upon the Advocate of the defendants to file an affidavit in support of their assertion and should have given an opportunity to the plaintiffs to file a counter with an affidavit either accepting or denying the averment made by the defendants.
When in the very proceeding the matter of death of one of the parties was brought to the notice of the court, the question of abatement must be decided in the proceeding itself. If the parties did not agree as to the date of death, the learned District Judge should have given opportunity to the parties for adducing evidence to prove their respective cases. After recording a conclusion as to the truth or otherwise of the assertion he should have disposed of the appeal in accordance with law. Admittedly neither defendant No. 1 nor his legal representatives are parties to the First Appeal before the learned District Judge. The right claimed by defendants No. 1 to 9 on the strength of the sale deed Ex. B is one and indivisible. If defendant No. 1 is alive and is not made a party to the First Appeal the entire appeal would abate and the trial court's decree would stand; otherwise there would be two inconsistent decrees.
If on the other hand defendant No. 1 died during the pendency of the suit and his legal representatives were not brought on record and the cause of action did not survive to the other defendants, the entire suit would abate. The matter has been fully discussed in Damodar v. Kanchan, ILR (1963) Cut 313=(AIR 1968 Ori 140). It was held therein that in a suit for ejectment all trespassers known to be in possession by the date of the suit are necessary parties. The legal position has been fully discussed in paragraphs 6 to 12 of the judgment, and it is unnecessary to repeat the same. We endorse the correctness of that decision.
4. The learned District Judge should not have gone into the merits of the case without deciding the question of abatement.
5. In the result, the judgment of the lower appellate court is set aside, the case is remanded, and the appeal is allowed. The learned District Judge is directed to dispose of the case in accordance with law and observations made above Costs to abide the result.
6. I agree.