1. Bagga Singh filed a suit against Gurdial Singh and his brother Hardial Singh for possession of 6 Kanals and 18 Marlas of land situated in village Gulwatti, district Patiala, on the allegation that the defendants were trespassers on the land. While the suit was being tried Gurdial Singh defendant died. The plaintiff then filed application under Order XXII, Rule 9 read with Section 151, Civil Procedure Code, seeking permission to implead the legal representatives of Gurdial Singh, deceased. This application was opposed by Hardial Singh, defendant, and on the pleadings of the parties the following two issues were framed:--
1. Whether the application is within time. If not, with what effect?
2. Whether the suit has abated. If so, to what extent?
The trial Court decided issue No. 1 against the applicant and issue No. 2 in favour of the defendants with the result that the suit was held to have abated in toto. Against this order of the trial Judge dated 27th December, 1969 the plaintiff appealed which was allowed by the Additional District Judge, Patiala, vide his order dated 1st May, 1971. Being aggrieved by this order of the Additional District Judge, Patiala, the defendant Hardial Singh has come up in appeal to this Court.
2. It is not disputed that Gurdial Singh had died on 28th April, 1969 while the application to bring his legal representatives on record was not made till 16th August, 1969. The application having been made beyond 90 days, the suit had abated. The abatement can, however, be set aside under Order XXII, Rule 9, Civil Procedure Code, if it is proved that the plaintiff was prevented by sufficient cause from filing the application earlier. In the application for setting aside the abatement the plea taken was that it was on 5th August, 1969 that the plaintiff learnt about the death of Gurdial Singh for the first time. This plea found favour with the learned lower appellate Court for the reason that though the counsel for the parties had appeared on two dates of hearing between 28th April, 1969 when Gurdial Singh died and 5th August, 1969 the counsel for Gurdial Singh did not inform the Court about his death. In my opinion, the inference drawn by the learned lower appellate Court was wholly unwarranted. The fact that the lawyer who represented the Gurdial Singh had not learnt about his death for sometime was neither relevant nor material in determining whether the plaintiff could have information about Gurdial Singh's death, if he had exercised due diligence. The argument that because Gurdial Singh's lawyer did not disclose about his death to the trial Court on two the earlier hearings, the plaintiff could not also get information about Gurdial Singh's death is clearly fallacious.
3. There is also another aspect of this matter. In the application under Order 22, Rule 9, Civil Procedure Code, the case of the plaintiff was that he had come to know about Gurdial Singh's death for the first time on 5th August, 1969. When, however, Bagga Singh appeared he made a statement that after twenty days or a month of Gurdial Singh's death he had learnt about it. This statement which was made in the examination-in-chief was again repeated in cross-examination and it was clearly asserted that the information about Gurdial Singh's death had reached him after twenty days of the death. In this statement no reference was made to what had been stated by Bagga Singh in his application as to when he had learnt about Gurdial Singh's death. This being the position, there is no evidence on the record on the basis of which the lower appellate Court could have come to the conclusion that Bagga Singh had received information about Gurdial Singh's death on 5th August, 1969 and not earlier. In fact, the material on the record in this respect is the statement of Bagga Singh and that statement leaves no manner of doubt that the plaintiff had learnt about Gurdial Singh's death within a month. Even otherwise it appears highly probable that Bagga Singh would have learnt about Gurdial Singh's death within in a short time Gurdial Singh was a resident of the same village in which Bagga Singh lived and even if he had died outside the village news about his death was bound to have spread in the village within a short time of the death taking place. Had the plaintiff been vigilant the relevant news would have reached his ears much earlier than 5th August, 1969. No reason has, therefore, been shown for holding that the plaintiff was prevented by any sufficient cause from ascertaining the fact of Gurdial Singh's death. I am, therefore, of the view that the plaintiff had failed to show that there was sufficient cause for not making the application earlier. There is no reason to set aside the abatement.
4. Faced with this situation it is vehemently argued on behalf of the plaintiff-respondent that in any case suit against Hardial Singh did not abate. Support for this argument was mainly sought from a Bench decision of this Court in Harichand v. Mst. Bachan Kaur, AIR 1971 Punj and Har 355. In this case the plaintiff had brought a suit for an injunction restraining thirty-four defendants from interfering with her ownership and possession of land bearing Khasra Nos. 344 and 346. The trial Court granted a decree to the plaintiffs and the defendants appeal before the Additional District Judge also failed. In second appeal, after considering additional evidence, which the learned Single Judge had permitted, the decision of the Courts below was reversed and the plaintiffs' suit was dismissed. Against this decision the plaintiff preferred an appeal under Clause X of the Letters Patent and during the pendency of this appeal some of the defendants died. As their legal representatives had not been brought on record the question arose whether the appeal abated in toto. The following observations of the Full Bench in Nanak v. Ahmad Ali, AIR 1946 Lah 399(FB), were followed:--
'After hearing the learned counsel for the parties we came to the conclusion that even apart from Order 41, Rule 4, Civil Procedure Code, the abatement of Nanak's appeal does not make Khair-ud-Din's appeal incompetent and that the latter's appeal can still proceed. Under the circumstances we did not consider it necessary to hear the parties at any length on the question as to the applicability of Order 41, Rule 4, Civil Procedure Code, or to examine the various conflicting decisions given by the different High Courts on this much vexed question. I wish, however, to observe that, without pronouncing any final opinion on the question whether the provisions of Order 41, Rule 4, C. P.C. should control those of Order 22, Rule 3, Civil Procedure Code, on which there is undoubtedly a conflict of opinion even in this Court, it would not be possible to apply Order 41, Rule 1, in the present case. Mr. Asa Ram Aggarwal, the learned counsel for the appellant, had to concede that according to the view consistently taken in this Court Rule 4 of Order 41, cannot be applied where the non-appealing plaintiff or defendant, as the case may be, has not been impleaded in the appeal at all and is not before the appellate Court.'
5. From the above it would appear that both in Harichand's case. AIR 1971 Punj and Har 355 and Nanak's case, AIR 1946 Lah 399(FB), the question for decision was regarding abatement of the appeal and not the abatement of the suit, and these decisions would therefore, not be of much help in the present case. The Full Bench in Nanak's case had found as a fact that the plaintiff was in possession of the house regarding which he had brought this suit and the suit had been brought only for the cancellation of the sale deed executed in favour of Nanak and Khair-ud-Din defendants. It has also been observed that both the vendees would be presumed to have purchased the property in equal shares. Thus the shares of the vendees were also specified. It was not a case where the suit had been filed against trespassers who were in possession of the land and the house. On the other hand the suit had been filed by the owner in possession and it was only for declaration of his title to house. In view of these circumstances it was clear that the observations made by Achhru Ram, J. were more in the nature of obiter and did not really arise having regard to the facts of the case. Moreover these observations only relate to the right of a trespasser to file an appeal if a decree for possession had been passed against him even though other trespassers had not joined in filing the appeal. The question whether a suit by the true owner against two or more trespassers would abate in case one or more of the trespassers had died and their legal representatives have not been brought on record was not at all considered in Nanak's case, or even in Harichand's case.
6. On behalf of the respondents reference was also made to Roda Mal v. Nighahia, AIR 1934 Lah 941, wherein it was held that--
'The death of one tortfeasor cannot affect the case against another and, therefore, if one of the joint tortfeasors dies and his legal representatives are not brought on record the suit cannot be dismissed on that ground.'
This again was not a suit by owner against trespassers but was a suit for recovery of the cost of the timber which the trespassers had destroyed. The view taken in this case is of no help in deciding the question with which we are concerned.
7. Similarly Manak Chand Singh v. Khubi, AIR 1928 All 555, which was cited on behalf of respondents, does not deal with the situation with which we are confronted in the present case. This was a suit under Section 34 of the Agra Tenancy Act, and was filed by the landlord against the tenants who were occupying the land without the permission of the landlord. The suit was filed for compensation and fair rent. In this case it was held that the liability of the tenants for the payment of the rent of any holding that is joint and several and if in the course of such a suit one of the trespassers dies and his legal representatives had not been brought on record the suit does not abate against the other trespassers. From the facts of the above case it is clear that the suit was not for possession by ejectment of the trespassers but for payment of money as rent and compensation.
8. On behalf of the appellant my attention is drawn to Sardara v. Allahyar, AIR 1923 Lah 132; Hakir Mohamed v. Abdul Majid; AIR 1953 Cal 588; State of Punjab v. Nathu Ram, AIR 1952 SC 89 and Swaran Singh Puran Singh v. Ramditta Badhawa, AIR 1969 Punj & Har 216. In Sardara's case the plaintiff had brought a suit against the defendants on the basis that they had trespassed on the land which belonged to them. Before the decision of the suit one of the defendants died and the question arose whether the appeal abates only against the deceased or against the others. It was found that the defendants held the land jointly and there had been no specification of shares or interests. It was then observed as follows:--
'The defendants hold the land jointly and there has been no specification of shares or separation of interests and there is a mass of authorities to the effect that under these circumstances the abatement against the one individual respondent leads to and necessitates the abatement against them all.'
The same view was taken in Hakir Mohamed's case wherein the following observations have been made:--
'In regard to a co-trespasser who had participated in the trespass if one of the trespassers dies and his heirs are not brought on record, the whole suit abates.'
9. In Nathu Ram's case, AIR 1962 SC 89, certain land belonging to two brothers jointly was acquired for military purpose. As the compensation awarded by the Collector was not acceptable to the land owners the matter was referred for enquiry to an arbitrator and the arbitrator passed a joint award granting a higher compensation. During the pendency of the appeal by the State Government against this award one of the land owners died and his legal representatives were not brought on record the question arose whether the appeal also abated against the other landlord. It was held by the Supreme Court that the appeal against the surviving land owner could not succeed alone. The judgment of the Supreme Court in Nathu Ram's case was considered by a Division Bench of this Court in Swaran Singh Puran Singh's case, AIR 1969 Punj & Har 216 and on an analysis of this judgment the following propositions of law emerged:--
'(I) On the death of a respondent, an appeal abates only against the deceased, but not against the other surviving respondents;
(II) In certain circumstances an appeal on its abatement against 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, dismiss it;
(III) The question whether a Court can deal with such matters or not will depend on the facts and circumstances of each case and no exhaustive statement can be made about those circumstances;
(IV) Some of the circumstances in which the Court would refuse to proceed further with the appeal against the surviving respondents on the abatement of the appeal against a deceased respondent are these:
(a) if 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 Court will proceed with the appeal except--
(i) When the success of the appeal may lead to the Court's coming to a decision which will 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 the action for the necessary relief against those respondents alone who are still before the Court; and
(iii) When the decree against the surviving respondents, if the appeal succeeds, be ineffective, that it 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 a 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 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 may be suitably dealt with by the appellate court is incorrect. 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;
(VI) * * *' Though both in Nathu Ram's case, AIR 1962 SC 89 and in Swaran Singh's case, AIR 1969 Punj & Har 216, the question was of abatement of appeal but the principles mentioned in (II) and (III) above would be attracted in the present case. In the case of joint tort-feasors the suit could not have been brought against some of them leaving out others. In such a situation even if a decree had been obtained, it could not have been successfully executed against the trespassers who had not been impleaded as defendants even though some other trespassers had been impleaded and decree against them had been obtained.
10. There is, therefore, no escape from the conclusion that the suit abates as a whole and not only against the legal representatives of the Gurdial Singh. Consequently the appeal is allowed, the order of the appellate Court is set aside and the suit of the plaintiff is dismissed as having totally abated. Considering the circumstances, the parties would bear their own costs.
11. Appeal allowed.