1. Bant Ram and others, ten plaintiffs, filed the suit in a representative capacity under Order 1, Rule 8, Code of Civil Procedure, with the allegations that the property in dispute was the joint property of the proprietary body of the village and defendants Nos. 1 and 2 with the connivance of some of the members of the Panchayat encroached upon a portion of Khasra No. 329/2 and wanted to raise a construction over it. In this suit defendant No. 3 was impleaded as a pro forma defendant and defendants Nos. 4 to 8 were impleaded defendants because an application was made on their behalf for being impleaded as such.
2. In the written statements filed on behalf of defendants Nos. 1 and 2 it was pleaded that they did not encroach upon any part of Khasra No. 329/2 and if any part of this Khasra No. Was in their possession they were entitled to retain it as members of the village proprietary body. Upon the pleas raised by the parties, the trial Court framed the following issues:--
1. Whether defendants Nos. 1 and 2 have encroached or occupied any portion of the land in suit?
2. Whether the plaintiffs are estopped from filing this suit by their acts and conduct?
3. Whether the site plan is correct?
4. Whether the suit is bad for non-joinder of necessary parties?
5. Whether the suit in the representative form is not maintainable?
6. Whether defendants Nos. 1 and 2 are in possession of their own share in the common land of the parties? If so, with what effect?
3. This suit was decreed by the learned trial Court. Defendants Nos. 1 and 2 went in appeal before the learned Additional District Judge, Hoshiarpur, before whom a preliminary objection was raised that the suit had abated because of the death of two of the persons who had been permitted to sue in a representative capacity during the pendency of the suit. This plea found favour with the learned Additional District Judge who held that the suit had abated. The appeal filed by defendants Nos. 1 and 2 was consequently dismissed and the parties were left to bear their own costs. The cross objections filed by the opposite side were also dismissed. It is obvious that the learned Additional District Judge did not give any finding on the merits of the controversy.
4. The question whether a suit abates on account of the death of one or two persons who are allowed to sue in a representative capacity is a vexed question of law. Order XXII, Rule 3(1) of the Code of Civil Procedure lays down that where one or more of plaintiffs die and the right to sue does not survive to the surviving plaintiff or plaintiffs, the Court may on an application made in that behalf cause the legal representatives of the deceased plaintiff or plaintiffs to be made a party to the proceedings. Whether the right to sue survives to the remaining plaintiffs in a case in which the plaintiffs are allowed to sue in a representative capacity would depend upon the facts and circumstances of each case. In Foulkes v. Suppan Chettiar, AIR 1951 mad 296, it was held that:--
'......... when a suit is brought by several persons in a representative capacity, and if one of them dies, the suit does not abate, because, the right to represent others of a class is not a right which ipso facto survives to the legal representatives of the deceased party. The source of that right is the order of the Court permitting the party to represent others. In such a contingency, namely, the death of one of the parties to whom originally permission was granted to institute a suit in a representative capacity, it is for the Court to decide whether the suit can be allowed to be continued by the surviving person or persons or whether other person or persons should be joined.'
It is obvious that the remaining legal representatives had to file an application to get permission for continuing the suit in the absence of the legal representatives of the plaintiffs. Similar view was taken in a Single Bench decision of this Court in Mehtab v. Ahmad Khan, AIR 1940 Lah 272. These cases really do not help the appellants because in this case the factum of death of the plaintiffs was neither brought to the notice of the Court nor was its permission sought by the remaining plaintiffs to sue in a representative capacity.
5. In Wali Mahommad v. Mahlu, AIR 1925 Lah 124, it was held by a Division Bench of this Court that an order under Rule 8 of Order 1, Civil Procedure Code, does not relieve the appellants from the necessity of impleading legal representatives of deceased respondents. This was a case in which some of the respondents had sought permission to sue in a representative capacity. After the suit was decreed in their favour, some of the respondents had died and their legal representatives were not brought on record by the defendants-appellants. In that situation it was held that so far as the unsuccessful defendants-appellants were concerned, there was the possibility of a conflicting decree coming into being if the legal representatives of some of the respondents who were allowed to sue in a representative capacity were not brought on record. The controversy in this case is of an entirely different nature. Here some members of the proprietary body filed a suit on the allegation that defendants Nos. 1 and 2 had encroached upon the land belonging to this body. The plaintiffs were allowed to sue in a representative capacity against two known defendants who were alleged to be trespassers. Both of them were alive and the suit of the proprietary body had been decreed against them. If one or two members of the proprietary body die, it really does not affect the right of this body which had been recognised in the form of a decree. Again it matters little if respondents Nos. 6 and 7 who were the members of the proprietary body allowed to be impleaded as defendants also died during the pendency of this appeal because the original suit which had also been brought for their benefit stood decreed.
6. Though technically speaking the remaining plaintiffs should have filed an application before the learned trial Court for seeking permission to continue the proceedings in a representative capacity but in spite of their failure to do so, the learned trial Court had passed a decree in their favour. Such a decree could not be upset on purely technical grounds. The learned lower appellate Court should have leaned upon Section 99, Code of Civil Procedure and should have accorded necessary permission to the remaining members of the proprietary body who wanted to defend the appeal in a representative capacity. The claim of the proprietary body should not have been thrown over board on the basis of such a technical objection.
7. I, therefore, allow this appeal and also allow the remaining members of the proprietary body to defend the appeal before the learned lower appellate Court. Consequently, the judgment and decree dated 18th of May, 1966, passed by the learned Additional District Judge is set aside and the case is remanded to the learned District Judge, Hoshiarpur for a fresh decision on merits in accordance with law. Parties to appear before the said Court on March 18, 1974.
8. Appeal allowed.