R.S. Narula, J.
1. The facts leading to this reference to the division Bench on the question
'Whether on the abatement of an appeal (preferred by a sister's son against the dismissal of his suit for possession against the collaterals on the ground that the plaintiff was a preferential heir, the shares of the defendant -collaterals being known) against one collateral th appeal can or cannot proceed against the remaining defendant-respondents'
have been given in substantial and requisite detail in the order of Harbans Singh J., dated February 24, 1966, and need not be repeated.
2. To recapitulate the relevant salient features which are necessary for deciding the question referred to us, it may be stated that Shrimati Banti inherited half the estate in question from her husband Jawala Singh and collaterally inherited the remaining estate from her husband's brother Kartar Singh (the estate comprises of agricultural land, a house and a Taur in village Gondpur, tahsil Garhshanker , district Hshiarpur), that Banti made a gift of the said property to Darshan Singh (appellant No. 1 in Regular Second Appeal 68 of 1957, and respondent No. 65 in the other appeal), that 64 collaterals of Jawala Singh and Kartar Singh (respondents Nos. 1 to 64 in Regular Second Appeal 68 of 19576, Jawala Singh respondent No 40 since deceased, obtained a decree from the trial Court on November 7, 1951 for a declaration about the said alienation being not binding on them, that during the appeal by Darshan Singh Defendant against the said decree , Banti having died on October 19, 1952, the suit was converted into one for possession, that by the appellate decree , dated February 10, 1954, of Additional District Judge, Hoshiarpur Darshan Singh's appeal was dismissed and the plaintiff's (the 64 collaterals) were granted a decree for possession of 1186/1296th share in the property in dispute, that subsequently on August 11, 1954, Harnam Singh and Sansar Singh collaterals who had not joined the first suit for declaration filed a separate suit for possession of 60/1296th share in the property in question where in they impleaded Darshan Singh donee and Swaran Singh and Shiv Singh (appellants in Regular Second Appeal 69 of 1957) (who are sister's sons of late Jawala Singh and Kartar Singh) as defendants, that the suit of Harnam Singh and another was contested by Darshan Singh as well as by the sister's sons, that the sister's sons, namely Shiv Singh and Swaran Singh, also instituted a suit for possession against Darshan Singh and all the collaterals of the last male holders relating to their entire estate and that by judgment and decrees, dated August 30, 1955. The trail Court decreed the suit of the two collaaterals Harnam Singh and Sansar Singh , but dismiss the suit of the sister's sons,. The decrees of the trial Court in the two suits were
affirmed in appeal by the learned District Judge, Hoshiarpur, on November 5, 1956. It is not necessary to mention or go into the findings of the first appellate Court for the purpose of answering this reference.
3. Against the first appellate Court's judgment upholding the decree of the trial Court dismissing the suit of Swaran Singh and Shiv Singh, the plaintiff preferred Regular Second Appeal 69 of 19578 on January 15, 1957. Dsuring the pendency of the appeal Jawals Singh son of Ganga Singh respondent NO. 40 (defendant No, 41 in the trial Court) died in 1960. No. application to bring on record any person as his legal representative was made at any; stage. When the case came up before the learned single judge, a preliminary objection was taken on behalf of the respondents that the appeal had abated against Jawala Singh and had thereafter become incompetent against the other respondents and was liable to be dismissed on that ground. The respondents relied on the judgment of the Supreme Court in State of Punjab v. Nathu Ram, AIR 1962 S. C. 89. In short, the question which has been referred to the Division Bench is whether this appeal falls within the four corners of the ratio of the judgment in Nathu Ram's case, AIR 1962 SC 89 or not.
4. Shri Ganga Parshad Jain, th klearned counsel for the appellant firstly contended on the authority of the judgment of the Supreme Court in Dolai Maliko v. Krushna Chandra Patnaik, AIR 1967 S. C. 49, That the omission to bring on record some of the heirs of a deceased is not fatal to the appeal and the appeal does not abate even against the deceased as his estate is already represented before the Court by at least some of his legal representatives. Counsel relied in this respect on an observation in the order of reference to the following effect:
'On behalf of the appellants it was conceded that Jawala Singh had died and though some of his legal representatives are there on the record already, yet some of his legal representatives have not been brought on the record..........'
The above-quoted observations in the order of the learned Single judge relates to a statement made on behalf of the appellants themselves.. If the factual position recorded therein were to be admitted by the respondents. There would probably have been no further difficulty if the law laid down in AIR 1967 SC 49 (Supra) were found to apply to the facts of this appeal, It is needless to go further into this point as Shri D. N. Aggarwal, the learned counsel for the contesting respondents, submitted that Mr. Ganga Parshad was not correctly instructed to state that some of the legal representatives of Jawala Singh deceased is already on the record . In this situation we asked Mr. Jain to point out to us so as to who was the legal representative of Jawala Singh already on the record of this appeal. Learned counsel was unable topoint out any such person and to show how he was the legal representative of Jawala Singh. In this situation Mr. Jain had to concede that this appeal against Jawala Singh deceased had abated.
5. Mr. D. N. Aggarwal then wanted to argue that the effect jof the death of waryam Singh respondent No. 19 on December 11, 1956, should also be considered. According to Mr. Ganga Parshad Jain on the other hand waryam Singh legal representative have e already been brought on record. Be that as it may, we are not concerned in this reference with Waryam Singh's death or its effect on the appeal either against his estate or against the other respondents as the learned single Judge has made no reference about it.
6. This takes us to the main question to be answered by us. In order to apply to his case the law on the subject, it is necessary to take notice of two more facts. The first fact is that the estate of Jawala Singh and Kartar Singh was never partitioned by metes and bounds between the collaterals who had succeeded in obtaining a decree for possession against Darshan Singh. Nor is there anything on the record of this case to show that even the 1186/1296th share in the estate was actually separated by metes and bounds from the remaining estates left in the hands of Darshan Singh, What the plaintiff-appellants claimed in substance in their suit was their right to inherit the estate of their material uncles against any number of collateral. The right or title on which the claim was based was the same and joint and indivisible against all the defendants. The second relevant facts in this connection is the frame of the suit from which this appeal has arisen. The original plaint is in urdu. The sister's sons (two) were the plaintiff Respondents 1 to 64 were the collaterals. Respondents No. 65 was Darshan Singh who is a transferee from one of the collaterals, Translated into English Paragraph 3 of the plaintiff and the prayer clause therein would read as below:
'Mst. Banti died on the 19th October, 1952 and defendant Nos. 1 to 66 are in possession of land in dispute mentioned in the heading of the petition of plaint. Defendants Nos. 1 to 65 show themselves as collaterals of the husband of Mst. Banti from about 12-13 degrees although the plaintiffs do not admit it and state their total ancestral shares to be 1296. Out of these defendants Nos. 1 to 7, 9 to 11 , 13, to 17,19 to 47 and 49 to 59 state their ancestral shares to be 1280 (1186 written in pencil over it). Other defendants Nos. 8, 12, 18, 48, 60 to 65 state their ancestral shares to be 110. Defendant No. 66 states himself to be in possession of those 110 shares. The detail of those 110 shares is stated as under:---
Defendant No. 8 24/1296th share, defendant NO. 12, 36/1296th share, defendant NO. 18 3/1296th share defendant No. 48, 9/1296th share defendant Nos., 60 to 62, 16 / 1296th share defendant No. 63, 12/1296th share defendant No. 65 (64) , 3/1296th share and defendant No. 65, 3/1296th share.'
'The plaintiff pray that a decree for possession of land measuring 31 kanals and 12 marlas bearing Khasra Nos. 1394/1 (0-6) , 1394 (0-18), 1395 (1-16), 1391 (8-0) , 1392 (8-0) , 1393 (6-8) , 1400 (1-8) , and 1396 (1-2) , 13297 (0-18) , 1399 (1-8) , and 1398 (1-8) ,entered at Khewaqt Nos. 231, 235, 271, 272 to 279 Khatuni Nos. 4122, 398, 449 and 470 to 475 Khatauni Paimash papers fot her year 1951-52 situate in the area of Gondpur P. S. Mahipur houses shown red in plans Nos. 1 and 2, situate in the Abadi of Gondpur, P. S. Mahilpur boundaries whereof are given in the heading of the petition of plaint; recovery of Rs. 445/- on account of the price of trees, standing on the land measuring 60 Kanals and 16 Marlas and possession of the shares in the land measuring 9 kanals and 13 Marlas and mentioned in paragraph No. 2 of the petitions of plaint may be passed in favour of the plaintiffs against defendants Nos. 1 to 7, 9 to 11, 13 to 17, 19 to 47 and 49 to 59 with costs of the suit or in the alternative a decree for any other relief to which the plaintiffs are found entitled by the Court against the defendants maybe granted.'
The argument advanced on behalf of the appellants was that they had filed suit against all the respondents collectively on account of the enabling provision of Order 1 rule 3 and Order 2 and rule 3 of they Code Civil Procedure and that they could if they so linked have filled 66 separate suits against each of the respondents; and that being so, the abatement of the suit at the second appellate stage against anyone of the defendant respondents would only amount to no suit having been filed in respect of the share of that particular respondent, particularly respondent, particularly when the shares are said to have been specified in paragraph 3 of the plaint. The argument appears to us to be misconceived for two reasons. Though the provisions of Order 1 and rule 3 and Order 2 rule 3 of the Code are no doubt enabling and not mandatory, it would depend on the facts of each case whether a plaintiff is bound to file one suit or may file separate suits for similar relief against different persons. In this particular case the property had not been partitioned and all the defendant collaterals were co-shares in defined shares. Everyone of the collaterals had, therefore, interest to the extent of his share in every inch of the estate. We do not therefore think that the plaintiff appellants could have in this situation, filed a separate suit against each one of th collaterals in respect only of the share of that particular collateral in the estate of Jawala Singh and Kartar Singh.
But even if we were to assume that such a course could have been adopted by the plaintiff's successfully we are not concerned with it at this state. What we are concerned with is that the plaintiffs in fact filed on composite suit against all the defendants for a joint decree for provision against all the defendants. Even a prayer had not been made in the plaint for specifying the shares of the estate form which Jawala Singh defendant NO. 41 had to be dispossessed. In fact the plaintiffs did not admit any shares of the collateral into property in question ,. This was not by; mistake ,. In the circumstances in which they filed the suit, they were not admitting the collaterals to be the heirs of Jawala Singh and Kartar Singh,. According to the plaintiffs they were the only heirs to he estate of their maternal uncles and the collaterals had no interest in the property that being so, the question of the collaterals having any particular share in the property in question could not have been admitted as a fact by the plaintiffs.
7. As stated above, the suit for a joint decree for possession against all the defendants was filed . The suit was dismissed by both the Courts below.; The joint and indivisible decree of the first appellate Court is to the effect hat
'the appeal be dismissed with costs and the decree dated 'August 30, 1955 of Shri Hira Lal Jain Subordinate Judge 1st class Hoshiarpur, under appeal, be and the same is hereby affirmed':.
The decree of the trial Court which was affirmed in first appeal was to the effect that 'the plaintiff's suit be and the same is hereby dismissed in its entirety.'
The claim in the suit was described in the decree of the trial Court in the following words:
'Claim for possession of land measuring 31 Kanals 12 Marlas bearing Khasra Nos. 1394 /1/6-Mls, 1394/18Mls, 1395/1 K116 Mls, 1`391 /8 Kls, 1392/8 Kls, 1393/6 Kls, 8 Mls, 1400/1 KI , Mls , 1396/1 Kl 2 Mls, 1397 /18 Mls. 1399/1 Ki 8 Mls 1398 /1 Ki 8 Mls Khewat Nos. 231 , 235, 271, 292 ti 297, Khatuani Nos. 412 , 398 , 449 , 470 to 475 entered in the Khatauni Paimash 1951-52 of village Gondpur police-station Mahilpur, houses shown in red colour in the plan attached with the plaint situation at Gondpur police Station Mahilpur detailed as (1) residential house shown red in the plan No. 1 bounded as east; House of Dalip Singh son of faqir Singh Terkhan, West, House of Hussan Lal North, passage Galli; South, passage (Galli) and vacant site shown red in the plan No. 2'.
8. The question with which we are concerned in these circumstances is whether the appellants could have preferred a proper and competent regular second appeal against the abovementioned decree of the first appellate Court by leaving out Jawala Singh, or any one or more of the respondents. Mr. Ganga Parshad had to argue that it would have been open to him to do so. We do not think this contention to belegally correct.; Mr. Ganga parshad Jain conceded that if an appeal filed by the unsuccessful plaintiffs against only some of the respondents would not have been competent, it cannot cpossinly be argued that this appeal continues to be competent after it has abated against one of the respondents. In support of his contention Mr. Jain referred to two cases. The first is the judgment of a learned single Judge of this Court (Khanna, J. )dated August 30, 1962, in Regular Second Appeal 191 of 1959 (Punj) Mst. Sama Kaur v. Toku. The learned Judge held in that case that not impleading the legal representatives of Toku defendant No. 1 as parties to the second appeal did not have any effect on the appeal against the remaining defendants (defendants Nos. 2 to 6) who were in possession of 3/11th share ion the land in dispute and in the appeal against defendants Nos. 7 to 12 who had 8/11th share therein. The arguments of the counsel for the appellants to the effect that non-impleading of Toku's legal representatives would result in the abatement of the appeal as far as 3/11th share was concerned which was in the possession of defendants Nos. 1 to 6 , was accepted , From a perusal of the judgment of Khanna J. it appears that different sets of defendants were in possession of different defined portions of the property, though it was observed in the judgment that the appeal against the remaining respondents was saved in view of the specification of shares of the respondents . Reliance was placed by the learned Judge on the full Bench judgment of the Lahore High Court in Sant Singh v. Gulab Singh, ILR 10 Lah 7: AIR 1928 from the judgment of Ashadi Lal C. J. in that case the learned Judge proceeded to hold as below;
'In view of the specification of shares of the respondents in the above said case, the appeal, as already stated, was held not to abate in toto. The observations in the above cited case have a direct bearing on the present case.'
9. As will be observed in a later part of this judgment, the mere specification of shares of the parties has now been held by the Supreme Court in Nathu Ram's case, AIR 1962 SC 89 (supra) to be not enough to save the appeal against the surviving respondents. The judgment of this Court in Province of East Punjab v. Labhu Ram , AIR 1955 Punj 225 which matter went up to the Supreme Court and was finally decided by their Lordships in the judgment reported in AIR 1962 SC 89, was referred in AIR 1962 SC 89, was referred to by Khanna J. but was distinguished on the ground that in case of that ground that incase f grant of an appeal against the joint award for compensation in Nathu Ram's case, AIR 1962 SC 89. There would have been two rates of compensation for the same land and as such there would have been two contradictory judgment, which result would not have followed in Mst. Sama Kaur's case, Regular S. A. No. 191 of 1959 D/- 30-8-1962 (Punj) (Supra). It was in that situation that Khanna J. held that because of non-impleading of the legal representatives of Toku, the appeal before him did not abate in toto, but had abated so far as 3/11th share was concerned, which was in the occupation of defendants Nos. 1 to 6. It has also been brought to our notice that though Khanna, J. granted a certificate of fitness of the case for appeal to the Letters Patent Bench against the learned Judge's judgment, dated August 30, 1962, the Letters Patent Appeal having been dismissed by the Division Bench in limine on November 9, 1962, Zila Singh and others obtained special leave to appeal to the Supreme Court on February 25, 1963, in petition for special leave to appeal (civil) No. 124 of 1963, and thus the judgment of Khanna J. went up for consideration to the Supreme Court Appeal to the Supreme Court is stated to be pending.
If the effect of the judgment of Khanna J. is properly analysed it would appear that it cannot help the appellants even if the law laid down therein were deemed to be good after the pronouncement of the Supreme Court in Nathu Ram's case, AIR 1962 SC 89. The appeal in that case was held to abate against defendants Nos. 1 to 6 though only defendant No. 1 died and defendants Nos. 2 to 6 were jointly in possession of 3/11th share in the land in dispute. That is not the case in the present appeal. As already observed all the defendants are jointly in possession of the entire estate in dispute, and only their shares are defined. Even otherwise, it appears that the observations in the Full Bench judgment of the Lahore High Court in the case of Sant Singh, AIR 1928 Lah 573 (supra) on which reliance was placed by Khanna J. cannot now be said to be a good law after the pronouncement of the Supreme Court in Nathu Ram's case, AIR 1962 SC 89.
10. The next case on which Mr. Jain relied is the judgment of a Division Bench of the Court (Falshaw C. J., as he then was, and D. K. Mahajan J.) in Subedar Jiwan Singh v. Ram Kishan , (1966) 68 Pun LR 626. What happened in that case was this. During the pendency of the letters Patent Appeal filed by Subendar Jiwan Singh plaintiff (the other two plaintiffs having been impleaded as respondents Nos. 5 and 8) against the decision of the learned Single Judge whereby their suit (suit filed by Subedar Jiwan Singh and respondents Nos. 5 and 8) for possession of land in pursuance of a declaratory decree already obtained by them to the effect that a particular alienation was not binding on htem,. Had been dismissed, Achhar Singh and Sadhu Ram respondent Nos. 5 and 8 died. Application for bringing on ecord their legal representatives was dismissed as barred by time. The Division Bench hald that the death of the two plaintiff respondent mentioned above had no effect whatever on Subedar Jiwan Singh's appeal Mahajan, J. (with whose Judgment Falshaw C. J. concurred ) observed in this connection as follows:
'In spite of the death of the two respondents mentioned above, we are of the view that their death has no effect whatever on plaintiff Subedar Jiewan Singh's appeal. The plaintiffs are entitled to, according to the law of inheritance, the estate of deceased Biroo in equal shares. They have only a right to the possession of th property left by him which falls to their share. Each plaintiff has an independent right to his share alone. He has no right to the share of th other plaintiff. In such circumstances all the plaintiffs could have filed separate suits for possession to the extent of their share I nthe inheritance. The mere fact that they have filed one suit will not in any manner affect the question of abatement. In such circumstances it will be taken for granted that the plaintiff have filed separate suits an the decree in their favour are really separate decrees. Subedar Jiwan Singh can only succeed to the extent of his share. If he had filed a separate suit, th death of his co-plaintiffs, that is, respondents Nos. 5 and 8 , would not have caused abatement of his suit, The mere fact that his co-plaintiffs are parties to the suit will not in any manner affect his suit because some of his co-plaintiff have died. The position might have been different ifone of t defendants had died and his legal representative had not been impleaded within the period of limitation. Therefore, we are clearly of the view that the death of other co-plaintiff does not in any manner affect Jiwan Singh's appeal, which has got to be decided on the merits. The preliminary objection is, therefore, repelled'.
11. It is significant that the learned Judges saw a distinction between the case of the abatement of an appeal against a contesting defendant and that of the death of one of the plaintiff during the pendency of an appeal by his co-plaintiff , where the rights of each of th plaintiffs were separate and independent Even if the law laid down by the Division Bench in Subedar Jiwan Singh's case, (1966) 68 Pun LR 626 could be said to still hold the field, th same would be clearly distinguishable from the case before us as it was contesting defendant-respondent who has died in the appeal before us. It has also been argued that the abatement of the appeal of Subedar Jiwan Singh against respondents Nos. 5 and 8 could not possibly lead to inconsistent decree sa s no relief had either been or could possibly be claimed by Subedar Jiwan Singh against respondents Nos. 5 and 8 who were also collaterals of the last male holder along with the appellant . Moreover we are not quite certain as to what would have been the decision of the Division Bench in Subedar Jiwan Singh's case on the question of effect of the death of the c-plaintiff -respondent te unreported judgment of the Supreme Court , dated April 10, 1962, in Civil Appeal 344 of 1956 (SC) Jhanda Singh v. Gurmukh Singh (deceased ) had been brought to its notice.
The case of Jhanda Singh arose from the following facts. One Labhu son of Ram Ditta died possessed of some agricultural land leaving behind him his widow Mast. Radhi, On the death of Radhi two grandsons of apaternal uncle of Ram Ditta, viz. Jiwa and Gurmukh Singh, filed a suit against Labhu's brother Gurdas for a declarations to the effect that they were in proprietary possession of the same. They based their title on the allegation that Gurdas having been adopted to one Mihan ceased to have any interest as a brother of Labhu, and, therefore, Jiwa and Gurmukh Singh along with Gurdas were entitled to succeed to Labhu's estate in equal shares. The suit was decreed by the trial Court. The defendant's second appeal to this Court was accepted by a learned Single Judge (J.L. Kapur, J., as he then was), and the suit of Jiwa and Gurmukh Singh was dismissed. The plaintiffs' Letters Patent Appeal against the judgment of Kapur, J. was, however, allowed and the decree of the trial Court and that of the first appellate Court in favour of plaintiffs was restored declaring the plaintiffs to be entitled to a half-share in the property left by Labhu.
After the disposal of the appeal by the Letters Patent Bench of the High Court jiwa the first plaintiff died. Appeal against the Division Bench judgment of the High Court was preferred to the supreme Court by the sons of Gurdas (Gurdas having died after the decision of the first appellate Court and before the institution of the appeal in the High Court, the said appeal having been filed by his three sons an his legal representataives) aklibe. Gurmukh Singh, the second plaintiff, and three of Jiwa (the first plaintiff were made respondents. Duering the pendency of the appeal in the Supreme Court, Gurmukh Singh plaintiff respondent died. No proper steps for bringing on record the legal representatives of 'Gurmukh Singh were taken within the time allowed by law. The Court refused to condone the delay. At the hearing of the appeal an objection was taken by the Counsel for the surviving respondents to the effect that the appeal having abated against Gurmukh Singh and the decree of th High Court wich was under appeal to the Su[remen Court being ta joint one in favour of all the plaintiffs. The netire appealhad abated, i.e., even in respect of the other respondents. While considering the impact of th order refusing to set aside the abatement of the appeal against Gurmukh Singh Plaintiff- respondenton the rest of the appeal, thelearned Judges of the Supreme Court referred totheir earlier judgment in AIR 1962 SC 89 (supra), as follows:
'Here as in that case, there is a joint decree. The suit was for a declaration to the effect that the plaintiffs were in proprietary possession of a half-share in the land described in the schedule to the plaint. The plaintiffs did not claim separate shares in the said property. They asserted an undivided half-share in the said property. Thedefendant denied their right the said share. The learned Subordinate Judge decreed the plaintiff's claim to a half-share in the property and that was finally confirmed by the High Court. The position , therefore, is that the present appealis filed by thedefenants's legal representatives fother purpose of vacating the jointdecree. If the appeal was dismissed against Gurumukh Singh on the ground that it had abated and was allowed against the 1st palintiff. There would be two inconsistent decrees: there would be a joint decree in favour of Gurmukh Singh for a half-share in the suit property along with the 1st plaintiff, while the suit of the 1st plaintiff would be dismissed.....'
On behalf of the appellants in the Supreme Court a distinction was sought to be drqwn between the facts of Nathu Ram's Case, AIR 1962 SC 89 and the facts of th appeal before their Lordships. While repelling the said contention th learned Judges observed as below:
'If the present joint decree could be split up into a decree for two different shares in the suit land, the decree in that appeal could also be treated as one for two moieties in the amount decreed. Indeed, this Court definitely held that even specification fo shares does not affect the nature f the decrees. The principle accepted in the said decision directly applies to the present case and we cannot distinguish it in the manner suggested by learned counsel for the appellants.'
12. In the face of the above mentioned authoritative pronouncement of the Supreme Court in the case of Jhanda Singh Civil App. No., 344 of 1956 D/- 10-4-1962 (SC) , the correctness of the judgment for this Court in (1966) 68 Pun LR 626, on this point appears to be doubtful.
13. The last case on which Mr. Ganga Parshad Jain relied is the judgment of a learned Single Judge of this Court (P. C. Pandit J.) in the jeon Singh v. Chanan Singh (1963) 65 Pun LR 449. The learned Judge held in that case that when the shares for the defendants in the land in suit are specified, th suit does not abate in toto when one of them dies, but it abates only to the extent of th share of the deceased. With the greatest respect to the learned Judge, we are constrained to hold that the said view which was based on certain observations in the Full Bench judgment of the Lahore High Court in AIR 1928 Lah 573 (FB) (supra) cannot be considered to be consistent with the law laid down by the Supreme Court in Nathu Ram's case, AIR 1962 SC 89 (Supra) , which was unfortunatleuy not brought to his Lord ship's notice.
14. I think Mr. Jain has not been able toget out of the hurdle placed inhis wasy by; the judgment of the Supreme Court in Nathu Ram's case, AIR 1962 SC 89 which when analysed, has ladi down the follwing propositions of law:
(I) On thedeath of a respondetn, an appeal abates only against the other surviving respondents;
(II) In certain circumstances an appeal on its abatement agaisnt the deceased respondent , cannot proceed even against the surviving respondents and in those cases the appellate Court is bound to refuse to proceed further with the appeal and must, therefore , dismss it;
(III) The qeustion whether a Court can deal with such matters or not will depend on the facts and circumstances of each case and no exhaustivestatement can be made abut those circumstances;
(IV) Some of the circumstances in which the Court would refuse to proceed further with the appeal against th surviving respondents on the abatement fothe appeal against a deceased respondent are these:
(a) if theappeal between the appellants and the respondents other than th deceased acna be said tbe properly consitituted or canbe said to have all the necessary parties for thedecision fo the controversy before the Court, the Ciourt will proceed with the appeal except---
(*I) When the success of the appeal maylead to the Cvourtys coming to a decision whichwiol be in conflict with the decision between the appellants and the deceased respondent and would, therefore, 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 appellants and the deceased respondent:
(ii) When the appellants could not have brought th action for the necessary relief against those respondent one who are still before the Court : and
(iii) When the decree against th surviving respondents, if th appeal succeeds, be infective, that is to say it could not be successfully executed ;
(b) If the decree under appeal is joint and indivisible the appeal against the other respondents also will not be proceeded with and will have to be dismissed as result of the abatement of the appeal against the deceased respondent;
(V) The view taken by the Courts in some cases previously to the effect that he 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 maybe suitably dealt with by the appellate Court is in 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 decute the entire decree or to resist the attempt of the other party to interfere with the joint right decreed in his favour.
(vi) The abatement of an appeal means not onlythat the decree between the appellant and thedeceased respondent has become final, but alsoas a necessary c orllary that the appellate Court cannot in any way modify that decree directly or in directly.
15. The contention of the State of Punjab, who was the appellant to the Supreme Court in Nathu Ram's case AIR 1962 SC 89 (supra) to the effect that the appeal against the surviving respondent could be heard because according to the entries in the villages records Labjhu Ram and Nathu Ram had equal shares in the land acquired and the Court could deal with half the amount of the award was repelled by their Lord Ships of the Supreme Court on the ground that the mere mention of specific shares in the revenue record was no guarantee f their correctness and that the appellant Court would have to determine the share of the deceased which could not be done in the absence of his legal representatives.
16. In Ram Sarup v. Munshi AIR 1963 SC 553, it was held that in an appeal from a pre-emption decree preferred by the vendees. The appellants fell into two group constituted respectively by the first and second appellants who were brothers and by appellants Nos. 3, 4 and 5 and that on the death of appellant NO. 5 and on his legal representatives not having been brought on record, the whole appeal had to be dismissed as the sale was no of any separate item of property in favour of the deceased-appellant but of one entire set of properties to be enjoyed by two sets of vendees in equal shares. The Supreme Court followed its earlier pronouncement in Nathu Ram's case, AIR 1962 SC 89 to the effect that the decree under appeal was a joint ne and as a part of the decree had become final by reason of the abatement the entire appeal must be held to have become incompetent..
17. A Division Bench of this Court (Grover and Ji;nddra Lal JJ.) went into the question in Puran Singh Basawa Singh v. Hazara Singh Punjab Singh, AIR 1966 Punj 312, and after referring t the judgment of the Supreme Court in Nathu Ram's case, AIR 1962 SC 89, in Ram's Sarup case, AIR 1963 SC 553 And in the case of Jhanda Singh, Civil App. No. 344 of 1956 D/- 10-4-1962 (SC) their Lordships held that thought the right of collaterals to succeed is not a single indivisible right so as to give each collateral a right of action for the whole estate and each collateral is entitled only to his own share in the case before their Lordships, the plaintiffs claiming to be collaterals of the deceased did not sue for their individual shares but sought a joint decree for possession and once such a course ahd been adopted, it was no longer open to them to latter on contend that they were suing for their individual shares, not was the suit counted on those allegations or filed in that manner.
18. The observations of the Division Bench in the case of Puran Singh, AIR 1966 Punj 312 (supra) are fully applicable the present appeal even if it could be successfully argued that it was open to the plaintiffs to have filed 676 separate suits, which proposition by the no means appeals to us in the circumstances of this case. L The fact remains that they filed one suit for a joint decree for possession against all the defendants and having done so they cannot now argue that the suit should be deemed to be for separate decrees fr possession of undivided specified shares in the property in question for the purposes of deciding the question of abatement.
19. In fairness to Mr. Jain it may be noticed that reference was made by the learned counsel to a Division Bench judgment of a this Court (Dua and Jindra Lal JJ.) in Punjab State v. Jasbi;r Singh , (1964) 66 Pun LR 763, wherein the appeal was held not to have abated against the surviving respondents after a consideration of the judgment of the Supreme Court in Nathuy Ram's case AIR 1962 SC 89 on the ground that the decree under appeal in that case was not a joint one, As already stated, each case depends on its own facts and is once all the relevant facts of Jasbir Singh's case, (1964) 66 Punj LR 763 (supra) are not before us , it is impossible to deal with that judgment . On the findings recorded by the Bench, however, the judgment is consistent with the pronouncement of the Supreme Court in as much as an appeal does not become incompetent against the surviving respondents on this abatement against one particular respondents if the decree against the two sets of respondents is not joint, unless there is some other reason forth Court's declining to proceed with the appeal. The same learned Judge (Dua J.) who prepared the judgment for the Court in the case of Jasbir Suibngh (1964) 66 Pun LR 763 (supra) wrote the judgment of the Division Bench (with which NS. B. Capoor J. agreed ) in Om Sarup v. Gur Narai;n, (1965) 67 Pun LR 634: (AIR 1965 Punj 367 ) and was clearly held that the Court should not be called upon to make two inconsistent decrees against the same property and that the appeal in that case had abated In toto as a consequence of its abatement against one of the respondents on the ground that the decree under appeal in Om Sarup's case, 67 Pun LR 634: (AIR 1965 Punj 367) was joint against all th defendants .
20. After a careful consideration of the entire law referred to above, we are of the opinion that this case falls clearly within instances Nos IV (b) , V and VI in the analysis of the judgment of the Supreme Court in Nathu Ram's case . AIR 1962 SC 89 (made in an earlier part of his judgment ) read in the light of the pronouncements of that Court in Ram Sarup 's case AIR 1963 SC 553 and in the case of Jhanda Singh, Civil App. No. 344 of 1956 D/- 10-4-1962 (SC) and that this appeal, after having abated against ne of the collaterals, has become incompetent and cannot now be proceeded with against even the surviving respondents,. We make this answer to the reference and direct that this appeal will now go back to the learned Single Judge for being disposed of in accordance with law in the light of this decision In the circumstances of the case we make no order as to costs of proceedings before us,
Mehar Singh, C.J.
21. I Agree.
Harbans Singh, J.
22. By my order dated 24th of February, 1966, in Regular Second Appeal NO. 68, of 1957 (Darshan Singh v. Harnam Singh ), this appeal was referred to a Division Bench for decision on the point as to whether this appeal had abated as a whole on account of the death of Jwala Singh whose legal representatives were not brought on the record in time. A bench of January, 1968, has returned the answer that this appeal having abated against one of the collaterals, has become incompetent and cannot now be proceeded with against the surviving respondents.
23. In view of the above, no other question arises and this appeal is dismissed as having abated, There will be no order as a to costs.
24. Appeal dismissed.