1. This judgment will dispose of S. A. O. No. 74 of 1979 and Civil Revision No. 612 of 1980 which arise out of the same judgment of the District Judge, Sangrur dated 16th Nov., 1979.
2. The following pedigree-table will be helpful in appreciating the facts of the case:
Giana----------------------------------------|------------------------------------| | |Ram Ditta Narain Singh Mst. Punjab Kaur(deceased issueless) (daughter)-----------------------------------------| |Mst. Bhan Kaur @ Bhagwan Mst. Nihal KaurKaur (plaintiff) (deceased issueless)
3. Ram Ditta was the owner of the land in dispute. He died about 7/8 years back issueless and widowless. It is alleged that defendant No. 1 Jangir Singh entered into its forcible possession. The plaintiff is the sister's daughter of Ram Ditta. Smt. Punjab Kaur, her mother, died while she was 21/2/3 years of age. After the death of her mother it is alleged, she was adopted by Ram Ditta who brought her up as his daughter. Thus the plaintiff was his only legal heir.
4. Defendant No. 1 sold part of the land vide two sale deeds dated 22nd Sept., 1958 and 29th April, 1965 (Exhibits DW 10A and DW 10C). By the formers sale deed he sold 18 bighas and odd in favour of Ralla Singh and others and by the latter sale deed 28 bighas and odd in favour of Partapa and other defendants. The plaintiff consequently filed a suit for possession against the defendants.
5. The suit was contested by the defendants on various grounds. During the pendency of the suit Jangir Singh and Partapa defendants died. Jangir Singh's widow Smt. Dhan Kaur was brought on the record as his legal representative but Partapa's legal representatives were not brought on the record. The suit was decreed by the trial Court on 27th Mar. 1968.
6. Smt. Dhan Kaur, the other defendants and the legal representatives of Partapa filed an appeal against the judgment and decree of the trial Court to the Additional District Judge. Smt. Dhan Kaur, after service in the appeal, moved an application dated 28th Nov., 1968 for bringing the legal representatives of Partapa on the record in the suit. The main ground of attack in the appeal was the Partapa had died during the pendency of the suit and, therefore, the appeal had abated in toto. The Additional District Judge accepted the appeal on that ground, set aside the judgment and decree of the trial Court and remanded the case for deciding the question of abatement of the suit and also the question of setting aside the same. The application which was filed for bringing the legal representatives of Partapa on the record was also sent by the Additional District Judge to the trial Court for deciding the same. After remand, Smt. Bhan Kaur filed another application for impleading the legal representatives of Partapa deceased. It was contested by the defendants. The learned Subordinate Judge set aside the abatement vide order dated 11th Jan., 1974 and ordered that the legal representatives of the deceased be impleaded as parties.
7. The defendants came up in revision against that order to this Court M. L. Verma, J. vide judgment dated 20-11-1974 set aside the order of the trial Court and directed it to decide the matter afresh after taking into consideration the observations in the judgment.
8. The trial Court again went into the matter and came to the conclusion that the suit stood abated in toto. Consequently it dismissed the suit as such. The plaintiff against the order of the trial Court filed an appeal before the District Judge, Sangrur, who modified the same and held that the suit had abated only to the extent of the share of Partapa. Consequently he remanded the case to the trial Court for disposal on merits. Smt. Dhan Kaur and some other defendants have filed appeal (S. A. O. No. 74 of 1979) and Smt. Bhan Kaur has filed revision (Civil Revision No. 612 of 1980) against the order of the District judge in this Court. First I shall deal with the appeal.
9. Mr. Satrajit has raised a preliminary objection that no second appeal was maintainable against the order of the District Judge. He submits that a decision of a Court under O. XXII, R. 9(2) of the Civil P. C. (hereinafter referred to as the Code) is an order against which an appeal has been provided under O. XLIII, R. 1. According to him, no further appeal is maintainable against an order passed in appeal under O. XLIII, R. 1. In support of his contention he makes reference to Madan Naik v. Mst. Hansubala Devi, AIR 1983 SC 676. I have duly considered the argument and find force in it. An order refusing to set aside abatement under O. XXI, R. 9(2) is appealable under O. XLIII, R. 1(k). No further appeals is provided against an order passed under O. XLIII, R. 1(k). Section 100, which makes a provision for second appeals, is not applicable as an order under O. XLIII, R. 1(k) is not a decree and the section provides for appeals against decrees. In the above view I am fortified by the observations of the Supreme Court in Madan Naik's case (supra) which read as follows:--
'When an appeal abates for want of substitution as envisaged by sub-r. (1) of R. 9 of O. 22, it precludes a fresh suit being brought on the same cause of action. It is a specific provision. If abatement implied adjudication on merits. S. 11 of C.P.C., would be attracted. Abatement of an appeal does not imply adjudication on merits and hence a specific provision had to be made in O. 22, R. 9(1) that no fresh suit could be brought on the same cause of action. Therefore when the appeal abated there was no decree, disposing of the first appeal, only course open is to move the Court for setting aside abatement. An order under O. 22, R. 9(2) C.P.C. refusing to set aside abatement is specifically appealable under O. 43, R. 1(k). Such an adjudication if it can be so styled would not be a decree as defined in S. 2(2) C.P.C. S. 100 provides for second appeal, to the High Court from every decree passed in appeal by any Court subordinate to the High Court on the grounds therein set out. What is worthy of notice is that second appeal lies against a decree passed in appeal. An order under O. 22, R. 9 appealabale as an order would not be a decree and, therefore, no second appeal would lie against that order. Such an appeal is liable to be rejected as incompetent'.
Consequently I uphold the objection of the learned counsel for the respondent. However, it is not disputed by the learned counsel that the appeal can be treated as revision by the Court. Consequently I treat the appeal as revision.
10. Before dealing with the main question it may be mentioned that the concurrent finding of the Court below that there was no sufficient cause to condone the delay in making the application to set aside abatement and, therefore, the abatement could not be set aside, has not been assailed before me and, in my view, rightly. It is well settled that in a revision petition a finding of fact arrived at by the Court below cannot be allowed to be raised. Consequently I shall proceed on the basis that the suit stands abated against Partapa deceased.
11. It is contended by Mr. Battas that the defendants were jointly in possession of the land as trespassers and Partapa had undivided one-sixth share in the land purchased by him along with some other defendants. After his death, the suit stands abated against him and if the suit against others continues, it is likely that a decree passed against other defendants may be in conflict with the decree passed against the deceased defendant. According to him, in one suit two contradictory decrees cannot be passed and consequently the suit stands abated as a whole. In support of his contention he placed reliance on State of Punjab v. Nathu Ram, AIR 1962 SC 89, Ram Sarup v. Munshi, AIR 1963 SC 553, Swaran Singh Puran Singh v. Ramditta Badhawa, AIR 1969 Punj & Har 216, Kartar Kaur v. Dhan Kaur, AIR 1970 Punj & Har 556, Hardial Singh v. Bagga Singh, AIR 1972 Punj & Har 343, Babu Sukharam Singh v. Ram Dular Singh, AIR 1973 SC 204, Abhe Singh etc. v. Zile Singh, 1974 Cu LJ 545, Hazara Singh v. Balwinder Kaur, (1983) 85 Pun LR 169 and Gugan v. Jagat Singh, 1984 Rev LR 72.
12. I have duly considered the argument of the learned counsel. O. XXII, R. 4 inter alia provides that where within the time limited by law no application is made to bring the legal representatives of the deceased defendant on the record, the suit shall abate as against the deceased defendant. It is well settled that the abatement against the deceased defendant is automatic and it is not necessary to pass a formal order for that purpose (see Madan Naik's case (AIR 1983 SC 676) (supra). Thus the abatement against Partapa was automatic.
13. It is also well settled that in case of death of one of the defendants the suit does not abate in toto if they can individually be sued. In other words, if the cause of action against several defendants in capable of being separated, in case of death of one of the defendants the suit shall abate only against the deceased defendant. In the said view I am fortified by the observations of the Supreme Court in Municipal Board, Lucknow v. Pannalal Bhargava, AIR 1976 SC 1091. In that case the Municipal Board instituted a suit against several defendants for rendition of accounts. One of the defendant-respondents died. The question arose whether the suit abated against the deceased respondent or in toto. It was observed that as the remaining respondent could individually be sued for rendering accounts and for recovery of amount due from them, therefore, the appeal did not abate as a whole. One of the tests laid down in Nath Ram's case, (AIR 1962 SC 89) (supra) referred to by the learned counsel for the appellant, though couched in a different language, is the same. It was inter alia observed therein that the Court will not proceed when the appellant could not have brought the action for necessary relief against those defendants alone who were still before the Court.
14. It cannot be disputed that a true owner need not bring one suit against joint trespassers. He can institute suits against each one of them. If he brings one suit against joint trespassers and one of them dies, the suit, in view of the above principle, will not abate in toto but against the deceased trespasser as the cause of action against them is capable of being separated. The matter is not respondent integra. A similar case came up before a Full Bench of the Lahore High Court in Nanak v. Ahmad Ali, AIR 1949 Lah 399. In that case two persons jointly purchased a house. The plaintiff who was in possession of the house brought a suit for declaration of his title to it. It was decreed. The purchasers appealed from the decree. One of the appellants died and his legal representatives were not brought on the record within the prescribed period of limitation with the result that the appeal abated so far as he was concerned. The question arose whether the appeal abated as a whole. It was held that the decree for possession was against trespassers and each one of them had independent right of appeal. Consequently the appeal abated against the deceased appellant only. The relevant observations of Achhru Ram, J. are as follows:--
'Where a person claiming to be the true owner of certain property obtains a decree for possession of that property against trespassers, each trespasser has an independent right to appeal against the decree and the mere Circumstances that one of the defendants does not appeal from the decree or even confesses judgment, would not disentitle the other to appeal. In effect and in substance in a case of this type there are as many decrees for ejectment or dispossession as there are trespassers. One trespasser agreeing to a decree being passed against him or not appealing from a decree after it has been passed, has the effect only of dislodging him form the property. If his other co-defendant files the appeal and succeeds, it cannot be said that in consequence of the acceptance of his appeal two inconsistent decrees will come into existence. The decree that becomes final against the non-appealing defendant is only a decree for his ejectment. The effect of the acceptance of the appeal of the co-defendant will be that he cannot be ejected. Both the defendants claiming under wholly independent rights, one will not be affected by the decree passed against the other '.
This judgment was followed by Mahajan, J. in Harichand v. Mst. Bachan Kaur, AIR 1971 Punj & Har 355. In that case too a suit had been instituted by an owner against the trespassers. The suit of the owner was decreed by the trial Court but in appeal before the first appellate Court, that judgment was reversed. Some trespassers died during the proceedings. The learned Judge, after noticing the observations in Nanak's case (AIR 1946 Lah 399) (FB) (supra) observed that the above principle fully applied to the facts of the case and therefore, there would be no total abatement. The learned Judge further held that the consequence of the death of some of the appellants would be that their names would be struck off from the record. Similar view was taken in Gram Panchayat Garhi Brahmana v. Puran Singh, 1973 Pun LJ 557, by Tewatia, J. The following observations of the learned Judge may be read with advantage:
* * * * *
Where the interests of the various defendants who are in possession of various properties, are independent, the appeal would abate only qua the deceased defendant and not in its entirety. In other words, where the cause of action was capable of being separated against the deceased party in that, separate suits regarding the part of the suit property in his possession could be filed against him and that he was merely joined as defendant to a suit on account of some question common to all the defendants, then in such a case the suit or the appeal on account of his demise would abate only regarding such a deceased party'.
All the case referred to by the learned counsel for the appellants are distinguishable and the ratio therein is not applicable to the facts of the present case. Therefore, I do not find any substance in the appeal.
15. Now I advert to the Civil Revision (No. 612 of 1980). No new argument has been advanced by Mr. Satrajit in the case. The revision petition stands concluded by the above.
16. For the aforesaid reasons I do not find any merit in the appeal as well as the revision petitioners and both are dismissed with no order as to costs.
17. Order accordingly.