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Sajjan Singh Vs. Ganga Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 1383 of 1975
Judge
Reported inAIR1976P& H393
ActsCode of Civil Procedure (CPC) , 1908 - Order 22, Rules 4 and 11
AppellantSajjan Singh
RespondentGanga Ram and ors.
Appellant Advocate H.L. Sarin, Sr. Adv. and; M.L. Sarin, Adv.
Respondent Advocate D.R. Puri, Adv.
DispositionPetition dismissed
Cases ReferredState of Punjab v. Nathu Ram
Excerpt:
.....amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal..........1973, sajjan singh defendant no. 1 made an application to the appellate court praying for the legal representatives of kundan lal being brought on the record. holding that the death of kundan lal had occurred on the 30th of june, 1972, and the application was, therefore, time barred, shri nirpinder singh, additional district judge, faridkot found that the appeal had abated and on that account dismissed it and it is against his judgment that sajjan singh has come up in revision to this court. 3. the petition was admitted only in so far as the abatement of the appeal before the district court as against ganga ram is concerned. mr. sarin, learned counsel for the petitioner, relies upon raghunath keshava kharkar v. ganesh alias madhukar balakrishna kharkar, air 1964 sc 234, for the.....
Judgment:
ORDER

A.D. Koshal, J.

1. This petition under Section 115 of the Code of Civil Procedure has arisen from a suit instituted by four persons named Ganga Ram, Kundan Lal, Partap Singh and Ujagar Singh on the following allegations. Arjan Singh defendant No. 2 owned l/4th share in land measuring 74 Bighas and 6 Biswas. He soldtwo thirds of that share in favour of Partap Singh plaintiff and Sham Singh, father of Ujagar Singh plaintiff, through a sale deed dated 1-3-2001 BK. Thereafter on the 7th of January, 1957, Partap Singh plaintiff sold his l/12th share in the said area to Kundan Lal plaintiff (vide sale deed Exhibit P. 1). More than a year later Ganga Ram plaintiff purchased the l/12th share held by Sham Singh in the said area from the latter on the 21st of June 1958 (vide sale deed Exhibit P. W. 3/A).

In the suit which has instituted on the 25th of March, 1970, possession was claimed by the four plaintiffs of certain specific Khasra numbers or, in the alternative, of an undivided l/6th share in the said area.

The defendants to the suit were Arjan Singh aforesaid and 12 others including Sajjan Singh defendant No. 1 who claimed to be a purchaser from Arjan Singh defendant No. 2 and who pleaded that no sale deed had been executed in favour of Partap Singh plaintiff and Sham Singh, father of Ujagar Singh plaintiff, by Arjan Singh defendant No. 2.

After the trial, a decree was passed on the 26th of February, 1972, in favour of the plaintiffs for possession of l/6th share in the said area.

2. Sajjan Singh attacked the decree passed by the trial Court in an appeal during the pendency of which Kundan Lal died. On the 22nd of March, 1973, Sajjan Singh defendant No. 1 made an application to the appellate Court praying for the legal representatives of Kundan Lal being brought on the record. Holding that the death of Kundan Lal had occurred on the 30th of June, 1972, and the application was, therefore, time barred, Shri Nirpinder Singh, Additional District Judge, Faridkot found that the appeal had abated and on that account dismissed it and it is against his judgment that Sajjan Singh has come up in revision to this Court.

3. The petition was admitted only in so far as the abatement of the appeal before the District Court as against Ganga Ram is concerned. Mr. Sarin, learned counsel for the petitioner, relies upon Raghunath Keshava Kharkar v. Ganesh alias Madhukar Balakrishna Kharkar, AIR 1964 SC 234, for the proposition that where the interests of various respondents are independent and severable, the appeal will abate in the case of the death of some of them only in so far as theyare concerned and not as against the surviving respondents. The proposition is unexceptionable but has no application to the facts of the case before me in which there is a joint and indivisible decree in favour of the four plaintiffs-respondents to which the criterion applicable will be that thus laid down in State of Punjab v. Nathu Ram, AIR 1962 SC 89:

'One view is that in such cases, the abatement of the appeal against the deceased respondent will have the result of making the decree affecting his specific interest to be final and that the decree against the other respondents can be suitably dealt with by the appellate Court. We do not consider this view correct. The specification of shares or of interest of the deceased respondent does not affect the nature of the decree and the capacity of the joint decree-holder to execute the entire decree or to resist the attempt of the other party to interfere with the joint right decreed in his favour. The abatement of an appeal means not only that the decree between the appellant and the deceased respondent has become final, but also, as a necessary corollary, that the appellate Court cannot in any way, modify that decree directly or indirectly. The reason is plain. It is that in the absence of the legal representatives of the deceased respondent, the appellate Court cannot determine anything between the appellant and the legal representatives which may affect the rights of the legal representatives under the decree. It is immaterial that the modification which the Court will do is one to which exception can or cannot be taken.'

The decree here having been passed jointly in favour of the four plaintiffs must be treated as indivisible notwithstanding the fact that the shares of Kundan Lal and Ganga Ram therein may be ascertained with reference to the pleadings of the parties. The real thing to be noted is that in the absence of the legal representatives of Kundan Lal, the appellate Court cannot determine anything between the appellant and those legal representatives such as may affect the letter's right under the decree.

4. Holding that the lower appellate Court was justified in treating the entire appeal as having abated, I dismiss the petition but with no order as to costs.


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