1. This is a plaintiff's appeal against the decision of the Subordinate Judge, First Class Rewari District Gurgaon, dismissing their suit.
2. Sheo Lal and others brought a suit against Ram Pat and ten others for a declaration that they and defendants 8 to 11 were entitled to two-third share and defendants 1 to 7 one-third share in the agricultural land measuring 515 Bighas 3 Biswas, comprised in Khewat No. 16 in village Akera, District Gurgaon, and that the entries made in the revenue papers showing defendants 1 to 7 as owners of one-half share, were wrong. The allegations of the plaintiffs were that according to their ancestral shares, they and defendants 8 to 11 had two-third share, while defendants 1 to 7 one-third share in the said land. They had been in possession of the abovementioned joint land and the Khewat was also joint. Defendants 1 to 7 had cleverly, in collusion with the Revenue Authorities, got their share entered in the revenue papers as one-half, instead of one third, without the knowledge of the plaintiffs and defendants 8 to 11. No dispute ever arose between the parties up to the year 1958, when consolidation proceedings started in the village. Then after inspection of the revenue records, it came to light that defendants 1 to 7 had got their share recorded as one-half, instead of one-third, and on that basis they were asking the Consolidation Authorities to allot land to them. That necessitated the filing of the present suit.
3. The suit was resisted only by defendants 1 to 7. They controverted the allegations made by the plaintiffs and pleaded that they had been in possession of the land to the extent of one-half share for the last more than 50 years as full owners. They were shown as owners in the revenue papers. Even if they were not found to be so to that extent, but as they had been in possession for the last more than 12 years as owners, they had become so by adverse possession as well. Their case was that mutual partition took place between the parties long ago and they had been in possession of their respective lands. It was denied that the plaintiffs and defendants 8 to 11 had two-third share in the suit land. They had only half belonged to defendants 1 to 7. The land in dispute was not joint of the parties, mutual partition having taken place between them long ago. It was also pleaded that the suit was barred by limitation.
4. After the putting in of the written statement, the plaintiffs filed their replication as well. It was mentioned therein that the suit was within time, because the plaintiffs had been in joint possession of the land according to the ancestral shares up to the date of its institution. The separate possession of the defendants was denied, because, according to the plaintiffs, the Khewat was joint of both the parties. It was also averred that the contesting defendants never remained in adverse possession of the land in question.
5. On the pleadings of the parties, the following issues were framed :--
1. Whether the suit of the plaintiffs is within time?
2. Whether the plaintiffs and defendants Nos. 8 to 11 have 2/3rd share in the land in suit?
3. Whether the defendants Nos. 1 to 7 have become owners of 1/2 share in the land in suit by adverse possession?
6. The trial Judge came to the conclusion that the possession of defendants 1 to 7 over one-half share of the land in suit had been adverse to the plaintiffs and defendants 8 to 11 and 'as such defendants 1 to 7 had also become owners of one-half share in the land by adverse possession'. Under these circumstances, the plaintiffs and defendants 8 to 11 were only entitled to one-half and not two-third share in land. It was further found that the present was a simple suit for a declaration of rights of ownership in the land, of which the plaintiffs and defendants 8 to 11 had not been in possession for over 50 years and as such their suit was barred by time. On these findings, the suit was dismissed with costs. Against this the present appeal has been filed by the plaintiffs.
7. Learned counsel for the appellants submitted that the parties to this litigation were descendents of one Raju who had four sons, namely, Lekhu, Thana, Hukma and Tiloka. Out of them, Tiloka died issueless. Plaintiffs were the descendants of Hukma, defendants 8 to 11 of Thana and defendants 1 to 7 of Lekhu. According to the learned counsel, the property in dispute measured 515 Bighas 3 Biswas and was comprised in Khewat No. 16, which was joint of all the parties. His case was that the descendant of the three sons of Raju had equal shares in the property. That being so, the plaintiffs and defendants 8 to 11 jointly will have two-third share and defendants 1 to 7 one-third in the said property. Counsel further contends that it was in collusion with the Revenue Authorities that defendants 1 to 7 got their share in the suit land entered as one-half instead of one-third. The Khewat was still joint and never partitioned. The property was in joint possession of all the co-sharer with the result that defendants 1 to 7 could not claim to have become owners by adverse possession.
8. Counsel for defendants 1 to 7, on the other hand, contended that his clients were the owners of one-half share in the land and had been in possession thereof for more than 50 years. The case of the contesting defendants was that a mutual partition was effected between the parties and half share fell to them and the remaining half to the plaintiffs and defendants 8 to 11. The parties had been in possession of their respective shares since then. Defendants 1 to 7 had been in possession of the land as owners for the last 50 to 60 years. A mutation was also entered in favour of their forefathers.
9. After hearing the counsel for the parties and going through the record of the case, we find that for the proper disposal of the case, it is necessary to get a report from the Court below as to whether defendants 1 to 7 had been in actual physical possession of one-half share of the land in suit. If so, in what capacity and from which year? It was conceded by the learned counsel for the appellants that if it was proved that defendants 1 to 7 had been in actual possession of the land to the extent of one-half share either in their own right or adversely to the plaintiffs and defendants 8 to 11 for more than 12 years before the institution of the suit, then their suit was liable to be dismissed.
10. We, therefore, send the case back to the trial Judge for giving a report on the point mentioned above within four months. The learned Judge will give reasonable opportunity to the parties to lead evidence on this point. Parties have been directed to appear before him on 17-8-1970.
P.C. Pandit, J.
11. This may be read in continuation of our order dated July 29, 1970, by which we had sent the case back to the trial Judge for giving a report as to whether defendants 1 to 7 had been in actual physical possession of one-half share of the land in suit and if so, in what capacity and from which year. The report had to be sent after giving a reasonable opportunity to the parties to lead evidence on this point. It was conceded that if it was established that defendants 1 to 7 had been in actual possession of the land to the extent of one-half share either in their own right or adversely to the plaintiffs and defendants 8 to 11 for more than 12 years before the institution of the suit, then their suit was liable to be dismissed.
12. On 16th November, 1970, counsel for the respondents made an application (Civil Miscellaneous No. 3198-C of 1970) under Order 22, Rule 4 (3) read with Section 151 of the Code of Civil Procedure, praying that the proceedings for recording additional evidence in the trial Court be stayed and it may be held that the appeal (Regular First Appeal No. 251 of 1960) had abated on account of the non-impleading of the legal representatives of Tej Ram, respondent No. 7, who had died somewhere in May 1968. It was stated in the application that in spite of the fact that the said Tej Ram had died 2 1/2 years back, so far no application had been made by the appellants to bring the legal representatives of the deceased on the record. Since the appeal on that account had abated in its entirety, there was, according to that application, no point in recording additional evidence by the trial Judge in pursuance of the order of this Court dated 29th July, 1970. In any case, the proceedings in the trial Court could not go on in the absence of the legal representatives of the deceased respondent.
13. Notice of this application having been issued to the counsel of the opposite party by us on 25th November, 1970, this matter has been placed before us for decision.
It was contended by the learned counsel for the respondents that the appeal had abated in its entirety by the non-impleading of the legal representatives of Tej Ram, respondent No. 7. On the other hand, the case of the plaintiffs-appellants was that the property in suit was joint of the parties to this litigation, all of them being co-sharers therein. By the death of one of them, the appeal could not be held to have abated in toto. Their case was that at the utmost it would be a partial abatement and only in respect of the share of the deceased-respondent.
14-18. The principles, which have to be borne in mind, while deciding the question whether a particular appeal has abated partially or in its entirety, have been laid down in the Supreme Court decision-State of Punjab v. Nathu Ram, AIR 1962 SC 89, where it was observed:
'It is not disputed that in view of Order 22, Rule 4, Civil Procedure Code, hereinafter called the Code, the appeal abated against Labhu Ram deceased, when no application for bringing on record his legal representatives had been made within the time limited by law. The Code does not provide for the abatement of the appeal against the other respondents. Courts have held that in certain circumstances, the appeals against the co-respondents would also abate as a result of the abatement of the appeal against the deceased respondent. They have not been always agreed with respect to the result of the particular circumstances of a case and there has been consequently, divergence of opinion in the application of the principle. It will serve no useful purpose to consider the cases. Suffice it to say that when Order 22, Rule 4, does not provide for the abatement of the appeals against the co-respondents of the deceased respondent there can be no question of abatement of the appeals against them. To say that the appeals against them abated in certain circumstances is not a correct statement. Of course, the appeals against them cannot proceed in certain circumstances and have therefore, to be dismissed. Such a result depends on the nature of the relief sought in the appeal.
The same conclusion is to be drawn from the provisions of Order 1, Rule 9 of the Code which provides that no suit shall be defeated by reason of the misjoinder or non-joinder of parties and the Court may in every suit, deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. It follows, therefore, that if the Court can deal with the matter in controversy so far as regards the rights and interests of the appellant and the respondents other then the deceased respondent, it has to proceed with the appeal and decide it. It is only when it is not possible for the Court to deal with such matters, that it will have to refuse to proceed further with the appeal and, therefore, dismiss it.
The question whether a Court can deal with such matters or not, will depend on the facts of each case and, therefore no exhaustive statement can be made about the circumstances when this is possible or is not possible. It may, however, be stated that ordinarily the considerations which weigh with the Court in deciding upon this question are whether the appeal between the appellants and the respondents other than the deceased, can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the Court. The test to determine this has been described in diverse forms. Courts will not proceed with an appeal (a) 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; (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the Court and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective, that is to say it could not be successfully executed.
There has been no divergence between the Courts about the Court's proceeding with the appeal between the respondents other than the deceased respondent, when the decree in appeal was not a joint decree in favour of all the respondents. The abatement of the appeal against the deceased respondent, in such a case, would make the decree in his favour alone final, and this can, in no circumstances have a repercussion on the decision of the controversy between the appellant and the other decree holders or on the execution of the ultimate decree between them.
The difficulty arises always when there is a joint decree. Here again, the consensus of opinion is that if the decree is joint and indivisible, the appeal, against the other respondents also will not be proceeded with and will have to be dismissed as a result of the abatement of the appeal against the deceased respondent. Different views exist in the case of joint decrees in favour of respondents whose rights in the subject-matter of the decree are specified. 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 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 the 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 expectation can or cannot be taken'.
19. Applying the test laid down in the above mentioned authority, let us see whether the success of the appeal, in the absence of the legal-representatives of the deceased-respondent, would lead to the Court's passing a decree, which would be contradictory to the decree, which had become final with respect to the same subject-matter between the appellants and the deceased-respondent.
20. As already mentioned above, the plaintiffs had brought a suit against defendants 1 to 7 (now respondents 1 to 7) for a declaration that they and defendants 8 to 11 were entitled to 2/3rd share in the land and the entries made in the revenue papers to the effect that defendants 1 to 7 were owners of one-half share therein were wrong, because they had got only 1/3rd share in the said land. This suit was dismissed by the trial Court. After the plaintiffs had filed an appeal in this Court in August 1960, Tej Ram defendant No. 7, (now respondent No. 7) died in 1968, when the appeal was pending. His legal-representatives having not been brought on the record up-till date, the appeal undoubtedly, abated qua his share in the land in question. In other words, the suit of the plaintiffs for the said declaration remained dismissed so far as the legal-representatives of Tej Ram were concerned. In case, the appeal proceeded in the absence of the legal-representatives of Tej Ram and if the same was accepted, it would mean that the plaintiffs and defendants 8 to 11 (now respondents 8 to 11) were entitled to 2/3rd share in the land and defendants 1 to 7 to the remaining 1/3rd. But the plaintiffs' suit for the same declaration had already stood dismissed as regards the legal-representatives of Tej Ram, defendant No. 7. It meant that this Court would be passing a decree, which would be inconsistent with the trial Court's decree, which had become final between the appellants and the deceased-respondent. Moreover, the dismissal of the suit proved that the entries in the revenue records to the effect that defendants 1 to 7 were owners of one-half share in the land were correct. The acceptance of the appeal would, on the other hand, mean that those entries were wrong. This again would be contradictory to the decree passed by the trial Court.
21. Following the Supreme Court decision, referred to above, I hold that the appeal has abated in its entirety by the non-impleading of the legal-representatives of Tej Ram, respondent No. 7, and, consequently, it stands dismissed. In the circumstances of this case, however, I leave the parties to bear their own costs in this Court.
22. I agree.
23. Appeal dismissed.