S. Ranganathan, J.
(1) The short question in this revision petition is whether the learned Sub Judge was right in dismissing the petitioner's suit as having abated.
(2) The suit was filed by the manager of the Naraina Education Society, a society registered under the Societies' Registration Act and running a Middle School for girls at Naraina. The dispute in the suit related to a ground admeasuring 83'x68' adjoining the school on the west and connected therewith by a door. According to the petitioner, the school building and the ground formed part of a large Khasra No. 953 jointly owned by a large number of cosharers including defendants 1 to 7, different parts and parcels of which were in the exclusive possession of the different cosharers. The above ground had been in the possession of the society oversince 1955 and had been used as the playground for the school children. It was alleged that the first five defendants had in the past trespassed on the land and were again threatening to forcibly and illegally take possession thereof and with a view to achieve the said object were harassing the female staff and students of the school. The suit was filed in November 1967 for a perpetual injunction against the defendants Yad Ram and his sons, (there were two other proforma parties, the owners of the premises and grounds through whom the plaintiff claimed possession) from entering with the peaceful enjoyment thereof by the teachers and children of the school run by the Society. Subsequently, in August '68 the plaint was amended alleging that the defendants had trespassed on the land during the pendency of the suit and seeking a mandatory injunction directing them to vacate and give possession of the playground in dispute to the plaintiff.
(3) Yad Ram, defendant No. 1 died on 17.3.1974. The plaintiff's counsel informed the court that as the sons of the defendant I were already on record he would bs taking no steps to implead the legal representatives of the deceased defendant. Thereupon, the other defendants applied to the court on 12.12.74 contending that as the plaintiff had failed to bring on record the legal representatives of the first defendant, in particular his six daughters, the suit had abated and required to be dismissed. This application has been allowed by the Sub Judge and hence this revision.
(4) I am of opinion that the learned Sub-Judge was in error in allowing the defendant's application and holding the suit to have abated. The suit had been filed seeking to restrain the defendants from interfering with the plaintiff's possession of the playground and also for a mandatory injunction to vacate the same and deliver possession to the plaintiff. This was on the ground that they had trespassed into the land which was in the exclusive possession of the plaintiff. The relief sought against the defendants was personal to each of them and did not survive the death of any of them. The plaintiff's claim for relief against Yad Ram from interfering with the plaintiff's possession would not survive the death of Yad Ram. The relief against the sons of Yad Ram had been claimed in the plaint not because they were the sons of Yad Ram but because they had also trespassed on the land individually and were in the position of tortfeasors along with Yad Ram. It has been held that there is no abatement of a suit against joint tortfeasors on the death of any of them (vide Hari Chand v. Bachan Kaur Air 1971 Pun. 355 and Huriansudhar Singh v. Ram Hitkari : AIR1963All496 ) and this position is also clear on principle.
(5) Sri Ramesh Chandra, forthe respondents, referred to the plaint in the suit and in particular the allegation in para 8 that the defendant and others were co-owners of Khasra No. 953 and contended that this was not a case of a suit against bare trespassers and that the plaint claim was based on rights of co-ownership and as such the interests of Yad Ram devolved on his sons and daughters. He submitted that the principle of abatement is based on the necessity to avoid conflicting decisions and that, since the failure to implead the daughters in this suit could lead to another suit by the daughters against the plaintiff based on title where a conflicting decision could be arrived at, the principle of abatement should be applied.
(6) I am unable to accept the contentions of the counsel. The suit is not a suit on title or for a declaration on the basis thereof. Though it is true that defendants I to 7 and several others are co-owners of Khasra No. 953, para 9 of the plaint clearly states that the parties are in exclusive possession of different parts and parcels thereof. It alleges that the defendants have trespassed on the playground in the plaintiff's exclusive possession. I am, thereforee, of the view that no question arises of any subsequent claim by the legal representatives of the deceased in regard to the subject-matter of this suit or of any abatement.
(7) Sri Khanna also raised an alternative contention that even if it is considered necessary that the estate of Yad Ram should be represented, it is aheady so represented sufficiently by the sons of the deceased and that, thereore, there will be no abatement merely because the daughters of Yad Ram are not brought on record. For this contention, he relied on Harihar Prasad Singh v. Valmiki Prasad Singh : 2SCR932 . In that case, one of the appellants Manmohini had died and the advocate for the appellants had written to the Court staling that, as her son was already on record, it was not necessary to add her legal representatives and it was sufficient if her name was struck off. Then the respondents made an application staling that Manmohini had left a daughter Ghia Devi and that the appeal had abated since she had not been added as a party. Thereupon the appellants filed an application for adding Ghia Devi as a legal representative and praying that the abatement may be set aside but this application was dismissed, leaving the question as to the time of the final hearing of the appeals. Based on these facts, a preliminary objection was taken before the Supreme Court that the appeals should have been dismissed by the High Court. This preliminary objection was overruled, and Alagiriswami-J. speaking for the Court, traced the development of the law on this point and pointed out that the issue was covered by earlier decisions of the Court. To start with 'the almost universal consensus of opinion of all the High Courts is that where a plaintiff or an appellant after diligent and bonafide enquiry ascertains who the legal representatives of a deceased defendant or respondent are and brings them on record within the time limited by law, there is no abatement of the suit or appeal and that the imp leaded legal representatives sufficiently represent the estate of the deceased and the decision obtained with them on record will bind not merely those imp leaded but the entire estate including those not brought on record.' It was so held in Daya Ram v. Shyam Sundari : 1SCR231 and the court proceeded to remark :
'IN a case where the person brought on record is a legal representative we consider that it would be consonant with justice and principle that in the absence of fraud or collusion the bringing on record of such a legal representative is sufficient to prevent the suit or the appeal from abating.'
Then came the decision in Dolia Moltikco v. Patnaik : AIR1967SC49 . Here one of the plaintiff's -appellants died during the pendency of the appeal. His widow and major son were brought on record but subsequently it was discovered that the deceased had left some other heirs also. Thereupon the respondents contended that as some of the heirs of the deceased had been left out and there could be no question of the want of knowledge of the existence of these heirs on the part of the widow and major son, the appeal had abated. But this contention was repelled. Referring to Daya Ram's case (Supra) and a later decision, the court observed :
'IT will be noticed that there is one difference between the present case and the two cases on which reliance has been placed on behalf of the appellants. This is not a case where a plaintiff or an appellant applies for bringing the heirs of the deceased defendant or respondent on the record; this is a case where one of the appellants died and his heirs have to be brought on record. In such a case there is no question of any diligent or bona fide enqiry for the deceased appellant's heirs must be known to the heirs who applied for being brought on the record. Even so we are of opinion that unless there is fraud or collusion or there are other circumstances which indicate that there has not been a fair or real trail or that against the absent heir there was a special case which was not and could not be tried in the proceedings, there is no reason why the heirs who have applied for being brought on record should not be held to represent the entire estate including the interests of the heirs not brought on the record. This is not to say that where heirs of an appellant are to be brought on record all of them should not be brought on record and any .of them should be deliberately left out. But if by oversight or on account of some doubt as to who are the heirs any heir or a deceased appellant is left out that in itself would be no reason for holding that the entire estate of the deceased is not represented unless circumstances like fraud or collusion to which we have referred above exist.'
Again in Mahabir Prasad v. J age Ram : 3SCR301 , it was held:
'WHERE in a proceeding a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on the record, as a heir and legal representative. Even if there are other heirs and legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act the proceeding will not bate.'
I think Shri Khanna is right in his submission that, applying the above principles also, the suit should not have been held to have abated.
(8) On behalf of the respondents two preliminary objections were taken, one of delay and the other that, since the order of the Sub Judge had merged in an appellate order of the Addl. Distt. Judge this petition to revise the order of the Sub Judge is not competent. The facts relevant to this contention may be briefly stated. Against the order of the trial judge dated 14.2.75, presently impugned, the petitioner, under legal advice, filed an appeal before the District Judge which was dismissed on 24.10.75 as not maintainable and as barred by limitation. The petitioner was advised to file a second appeal to this Court (RSA 26/76) which was dismised by B.C. Misra-J. on 4.8.1976 holding that the order of the lower appellate Court did not suffer from any legal infirmity and did not call for interference. Thereafter, the present revision was filed on 24.8.76.
(9) The contentions of Shri Ramesh Chandra cannot, in my view, be upheld. The order of the Addl. Distt. Judge merely refused to entertain an appeal and dismissed it as not maintainable. The order of the Sub Judge cannot, in the circumstances, be said to have merged therein (see State of Madras v. Madurai Mills Co. Ltd, : 1SCR732 ). So far as the point of delay is concerned, it does not survive as the matter has already been considered and the delay in filing the revision petition condoned by the order of Deshpande-J. (as he then was) dated 29.11.76 in C.M. No. 1369/76 which was an application for condensation of delay.
(10) For the reasons discussed above, the Civil Revision is allowed. The suit filed by the petitioner is restored to the file of the Sub Judge who will now proceed to dispose it of in accordance with law. The records will be transmitted to the lower court and the parties will appear before the Sub-Judge concerned on 2nd July 1979 for directions as to posting. Petition allowed.