I.N. Modi, J.
1. In this plaintiff's second appeal in a suit for possession, the only question for determination before me at this stage is whether the plaintiff's appeal in the court below abated entirelyand not merely in part, that is against one of the defendant respondents Bherunlal as held by the lower appellate court.
2. It is necessary to set out a few facts to appreciate the point in controversy. The plaintiff as sub-mortgagee brought the suit, out of which this appeal arises, against two persons, namely, Bherunlal and his son Mithalal for recovery of possession of certain immovable property on the allegation that they had taken unlawful possession thereof and had refused to return it when demanded. The plaintiff also impleaded the original mortgagees as defendants in this suit and these persons admitted the plaintiff's claim though their names were subsequently ordered to be removed from the array of parties for reasons into which it is not necessary to enter.
The other defendants, namely, Bherunlal and Mithalal contested the suit. Their case was that they were rightful owners in possession of the suit property. The trial court dismissed the suit. The plaintiff then went in appeal to the District court, and the appeal eventually came to the Civil Judge for disposal by transfer. While the appeal was pending in the Civil Judge's court, defendant Bherunlal died on 28-3-1952.
The plaintiff made an application on 16-12-1952 to bring his (Bherunlal's) other sons on the record as the deceased's legal representatives, but this application was rejected as being barred by time. Consequently, the Civil Judge held that the appeal had abated qua Bherunlal, and thereafter he heard the appeal against Mithalal only and dismissed it on the merits. The plaintiff has come up in second appeal to this Court now against the judgment and decree of the Civil Judge.
3. A preliminary objection has been raised by learned counsel for the defendants that the entire appeal had abated in the lower appellate court and, therefore, this appeal was a nullity. This is how the question of abatement has arisen in this Court.
4. The argument for the defendants is put in this way. It is contended that the plaintiff brought this suit for recovery of possession from the two defendants on the allegation that they were trespassers and this suit was dismissed by the trial court with the result that the defendants Bherunlal and Mithalal were entitled to remain in possession of the suit property as hitherto.
On Bherunlal's death on 28-3-1952, when the plaintiff's appeal was pending in the trial court, it is argued, that the right to sue survived not against Mithalal alone but against the other sons of Bherunlal also within the meaning of Order 22, Rule 4 C. P. C., and, consequently, an application to bring these latter persons on record must have been made under sub- Rule (1) of Order 22 Rule 4 within the time permitted by Article 177 of the Limitation Act, and that having not been so made, the appeal abated against Bherun-lal as held by the lower appellate court itself.
It is further contended, however, that that court fell into error when it came to the conclusion that the appeal against Mithalal survived, and that the real position in law was that the whole appeal had abated. The reason which is stated for this conclusion is that any variation or reversal of this decree, if ordered by the court below or for the matter of that by this Court now is bound to cause difficulties.
If such a decree is sought to bind the other sons of Bherunlal who had not been brought on the record in the lower appellate court, then it is obviously likely to work to their prejudice. On the other hand, if the contention be that such a decree could bind Mithalal only and not the other sons of Bherunlal, then such a decree would result in inconsistencyand also be futile and devoid of all practical effect and no court of law should pass such a decree. It was, therefore, vehemently argued that this appeal be dismissed on this ground alone.
5. The above argument is met on the side of the appellant by the submission that Mithalal one of the sons of Bherunlal deceased, was already on the record, and, therefore, even though the appeal abated against the deceased Bherunlal, it could not have abated against Mithalal, and that the presence of Mithalal on the record was sufficient to prevent the appeal from total abatement, and, consequently, it was argued that this Mithalal having been already there on the record, it was not necessary to bring the other sons of Bherunlal as the latter's legal representatives on this record, and that, in any case, if their presence was considered desirable to complete the array of parties to this appeal, the other sons of Bherunlal can come on the record at any time and should be allowed so to come.
6. I have carefully examined the rival contentions set out above in the light of numerous authorities which were cited before me on either side. Learned counsel for the defendants placed his reliance on Gurdas Mal v. Kashi Ram, AIR 1921 Lah 160(2) (A), Sarat Kamini v. Chaitanya Chandra, AIR 1923 Gal 289 (B), Lilo v. Jhagru, AIR 1925 Pat 123 (C), Basist Narayan v. Modnath Das, AIR 1928 Pat 250 (D), Mt. Laxmi v. Amritlal, AIR 1933 Nag 95 (E) and Jugal Kishore v. Wardhasa, (S) AIR 1955 Nag 166 (F).
On the other hand, reliance was placed by learned counsel for the plaintiff in support of his contention that it was sufficient for the plaintiff where a defendant dies during the pendency of a suit or appeal to put one of the heirs on the record and that such person will then sufficiently represent the estate of the deceased on Jehrabi v. Bis-millabi, AIR 1924 Bom 420 (G); Abdulla Sahib v. Vageer Beevi Animal, AIR 1928 Mad 1199 (H); Mulchand v. Jairamdas, AIR 1935 Bom 287 (I), Md. Ata Husain v. Husain Ali, AIR 1944 Oudh 139 (J) and Balgajan Rai v. Sukhu Rai, AIR 1948 Pat 288 (K).
7. Now I think that no very useful purpose can be served by dealing with the aforesaid authorities one by one, and, therefore, I do not propose to perform this unprofitable task. I do wish to say, however, with all respect that it is not easy to reconcile all the cases cited above, and other decided cases in this connection, and it does seem to me, again with profound respect that the. distinction between the requirements of Rule 2 and Rule 4 of Order 22 has not always been borne in mind in many of the decisions with the result that a good deal of confusion has entered into the exposition of case law on this point.
8. Before I proceed farther, I must in this connection invite attention to a Bench decision of our own Court in Poonamchand v. Motilal, ILR (1955) 5 Rai 77: (AIR 1954 Raj 287) (L). A number of cases were reviewed in this case and the law was then summed up in the following words:
'A review of these authorities shows that the consensus of opinion of the High Courts in India is that where some of the legal representatives have been brought on the record within time, the estate can be said to be sufficiently represented by these legal representatives, and there cannot be abatement provided there is no collusion or fraud in leaving out the other legal representatives. It has also been held by some High Courts that in such a case there is no objection to bringing the left out legal representatives on the record even after the ninety days' period of limitation as that only completes the array cf parties and would notaffect the appeal materially. The reason for this seems to be that where there is no fraud or collusion, the legal representatives brought on the record sufficiently represent the estate, and even if some are left out by oversight, it cannot be said that the estate was not sufficiently represented.
In this view of the matter the question of limitation loses its force, and if later it is brought to-the knowledge of the court in the same suit or pro-ceeding that some legal representative has been left out, the court would be justified in bringing him on the record also.' .....
'Under these circumstances, where there is no fraud or collusion, the court should exercise its discre-tion by allowing the party to bring the left out heirs on the record even after the period of limitation of ninety days has expired and use Section 5 for that purpose.'
Their Lordships went on further to observe as follows:
'We do not mean by this that the parties are at liberty only to mention some legal representatives even if they know all. What we mean is that if a party has exercised due diligence to find out the names of all the legal representatives, and believes that those whom he mentions are the only legal representatives, though later it turns out that that is not correct, such party may be allowed to take advantage of Section 5 of the Limitation Act.' With utmost respect, it has not been easy for me to apply the decision in the above case to the case in hand. Learned counsel on either side places his reliance on and wishes to draw support from different portions of this judgment.
9. The first extract from the judgment cited above seems to suggest as if the bringing of only some or even one of the several legal represent tatives on the record should be enough to prevent abatement, but the latter portion also extracted above, seems to strike a somewhat discordant note.
Again, it seems to me with profound respect, that the question of the application of Section 5 of the Limitation Act can only come into play when abatement has already taken place and is required to be set aside; but if there is no abatement at all, then the question of the application of Section 5 of the Limitation Act, to my mind, could not arise.
Be that as it may, I am in respectful agreement with the actual conclusion arrived at in Poonamchand's case (L), inasmuch as an application to bring two of the three minor sons of the deceased respondent therein had been made within time and it could be said with justification in the circumstances of that case that the appellant was not aware of the third minor son of the deceased (the parties living far away from each other), and, therefore, the deceased's estate was sufficiently re-presented by his heirs who had already been brought on the record within the prescribed time, and in any case, the third son of the deceased could also he brought on the record by giving him the benefit of Section 5 of the Limitation Act the ap-plication whereof could not be resisted in the cir-cumstances.
But the question of abatement which has arisen in this case lies in a different combination of circumstances, and falls within a class of cases which is typified by the second extract quoted by me above from the judgment in Poonnm Chand's case (L). The question may be posed somewhat like this. Grunted that there is no fraud or collusion between the parties on the record but where the names of a considerable number of the legal representatives, say, five sons out of six, of thedeceased party have not been brought on the re-cord within the time permitted by law, and this is attributablle to lack of due care and caution (asseems to be the real situation in the present caseas I shall endeavour to show later) can it be said, in this class of oases, that the presence of one of the legal representatives of the deceased on therecord, though in a different capacity it sufficient to prevent abatement or can the failure to bringall the other legal representatives of the deceaseddefendant within the time prescribed by law in this class of cases be condoned either as not occasioning any abatement at all one legal representative being already on the record, or by virtue of Section 5 of the Limitation Act?
The decision in Poonamchand's case (L), wascertainly not directly concerned with circumstances of this character and is clearly distinguishable, In the aforesaid state of authorities, I take the liberty of staling the law applicable to a case, like the present, as it seems to me, more or less on first principles, and having regard to the scheme of the relevant provisions of the Code of Civil Procedure,as follows :
(1) A comparison of rules (2) and (4) of Order 22, to my mind, unmistakably indicates that where in a suit there are more defendants than one, and the right to sue survives against the defendant or defendants already OK the record alone (the right to sue includes the right to appeal), then no application to bring the legal representatives of the deceased on record is necessary, and all that the courtneed do is to note the tact of the death of the deceased defendant and strike out his name from the array of parties, and it should then proceed to decide the ease with respect to the defendant or defendants on record. (Order 22, Rule 2)
(2) But where the right to sue (this again includes the right to appeal) does not survive onlyagainst the defendant or defendants already on re-cord, then is a rule it seems to me that an application to bring all his legal representatives on therecord has to be made in accordance with Sub-rule (i) of Order 22, Rule 4, and such application must be made within the time prescribed by law, that is Article 177 of the Limitation Act, and where such application is not made, the suit must as a ruleabate against the deceased defendant. See Sub-rule 3.
(3) The important thing to see, therefore, in order to determine the question of abatement is whether the right to sue survives against the defendant already on record, or it survives against otherpersons also, and where it does survive against suchother persons, then abatement against the deceasedmust follow unless his legal representatives are brought on the record within the time prescribed by law.
(4) Whether the abatement would be confined to the deceased defendant only or it would affectthe suit or appeal entirely as the case may be, is a question which would depend upon the Facts andcircumstances of each case in the light of the Jawapplicable to it.
(5) There is a class of cases wherein some of the legal representatives of a deceased defendantare already on record and others are not, or wherean application has been made to bring some of them on the record but some others have been left out, and in these cases the omission to bring all the legal representatives on the record seems to me certainly to be a defect on the face of things.But whether this defect would be fatal to the suit or appeal or not depends upon whether the defen-dant or defendants already on record sufficiently represent the estate of the deceased.
If they do, then the suit or appeal must be allowed to proceed and the addition of the other legal representatives in such cases would be really a matter of form rather than substance, though it may be added that even in such cases it may be desirable to bring the persons who have been left out on the record to complete the array of parties and avoid any future complications.
But where the person or persons already on record do not sufficiently represent the estate, then it does seem to me that the omission to bring the lemaining legal representatives of the deceased on the record within the time permitted by law is a vital defect and is bound to affect the progress of the suit or appeal and must indeed bring it to a dead stop.
6. Again, there is a class of cases where the plaintiff in spite of due and reasonable diligence has not been able to discover all the legal representatives of the deceased defendant, and, therefore, he applies to bring only some of them on the record within the time permitted by law. In such cases it has been held that the failure to bring all the legal representatives of the deceased defendant on the record cannot have the effect of abating the suit or the appeal. Such was the situation in Poonamchand's case (L), which is a case of our own Court and has been cited above.
These decisions can be clearly supported either on the principle of sufficient representation and no abatement having taken place at all, or on the ground that even though the abatement did take place, time can be extended in such cases to set aside the abatement under Section 5 of the Limitation Act read with Order 22, Rule 9, C. P. C.
7. If the above propositions represent a correct statement of law in a case like the present with great respect, I would state that I should not be prepared to follow those cases which lay down that the presence of only one of the legal representatives would be sufficient in all cases to prevent abatement irrespective of the consideration that the right to sue does not servive against the remaining defendants alone and irrespective further of the consideration that the defendant or defendants who are already on record do not sufficiently and substantially represent the estate of the decaesed, and the cases which lay down the law to the contrary, in my humble judgment, go too far having regard to the scheme of the rules 2 and 4 of Order 22, C. P. C.
10. Let us now see how the abovementioned principles apply to the present case. As already stated above, this is a suit for recovery of possession against joint trespasser two in number. It was not, and is not, the case of the plaintiff that the defendants were in possession of separate or distinct portions or shares in this land.
The trial court dismissed the suit against both of them. The plaintiff then filed his appeal against both. One of these, Bherunlal, the father, died during the pendency of the appeal in the lower appellate court, leaving behind him six sons of whom Mithabil was already on the record but the remaining five were not.
The right to sue did not survive against Mitha-lal alone and so an application to bring the other legal representatives of the deceased was required to be made within the time permitted by Section 177 of the Limitation Act. An application for this purpose was doubtless made but beyond time, and was rejected, and so the appeal could not but abate against the deceased, Bherulal. The question then arises, whether the entire appeal abated.
In order to determine this question, it is important to remember that the result of the abatementqua Bherunlal is that the decree passed by the trial court in Bherunlal's favour must stand intact and unimpaired and cannot be affected by the result of me appeal. In other words, if the lower appellate court should have thought fit to reverse the trial court's decision on the merits against Mithalal, or for that matter if this Court were to do so, there would come into existence two inconsistent decrees, one in favour of Bherunlal's legal representatives (excluding Mithalal) who are not properly on the record, and the other against Mithalal another son of Bherunlal. who is already on the record. Or, put in a slightly different manner, a decree would be brought into existence against Mithalal which could be defeated by the other sons of Bherunlal and reduced to a futility.
The law, generally speaking, is that in an action brought for the recovery of land all the persons who are in possession should be joined as defendants. (See Halsbury's Laws of England, Second Edition, Vol. XXVI page 16 paragraph 13) In these circumstances, the conclusion at which I arrive is that the appeal abated not only against Bherunlal but abated wholly, unless the case falls within the ambit of the exceptional cases already discussed above, decided on the principles formulated above. The first is whether Mithalal sufficiently represented or represents the estate of his father Bherunlal.
There is material on the record to show that Bherunlal left him surviving six sons, namely, Kanakmal, Motilal, Kishanlal, Dhanraj, Mithalal and Ambalal, and that Ambalal is the eldest son of the deceased and Mithalal is the youngest but one It is also contended for the defendants that the sons of Bherunlal are in joint possession of all tho immovable property of the family though they are living and messing separately except that Bherunlal in his life-time lived with .Kanakmal his youngest son, and Mithalal and Ambalal are also joint. In such circumstances I find it extremely difficult for me to hold that Mithalal substantially or sufficiently ever represented the estate of the deceased Bherunlal.
11. The next question is whether the plain-tiff appellant could not by due or reasonable diligence discover the fact that Bherunlal had left behind him a number of sons other than Mithalal. On this question also the finding must be against the plaintiff. The parties are admittedly residents of the same village Kuathal, Tehsil Deogarh. They are Mahajans.
An affidavit was filed by Ambalal, the eldest son of Bherunlal that his father had died in his own village and that the plaintiff Roopchand had joined his funeral ceremony. This fact has not been contradicted by the plaintiff by a counter affidavit. In fact he has not stated at all why it was that he made the application to bring the other sons of Bherunlal on tie record as his legal representatives as late as the 16th December, 1952, when Bherunlal had died on 28-3-1952. In this state of affairs, I have not the slightest hesitation in holding that the plaintiff cannot possibly claim the benefit of Section 5 of the Limitation Act.
12. In this view of the matter, I am clearly of the opinion that the whole appeal before the lower court abated and that it did not abate against Bherunlal alone. I would point out once again that the one broad test in such cases that has been accepted is whether the continuance of the appeal would result in two inconsistent decrees or would result in the emergence of a decree which could be rendered futile by the other persons in possession who are not properly before the court. I have no doubt that judged by this test, the whole appeal must stand abated.
13. My attention was drawn in this connection to Shibban v. Allah Mehar, AIB 1934 All 716 (M), in which it was held that where a suit was brought for possession and injunction against a number of trespassers for possession of immovable property, it cannot be said that a decree for possession against some of the trespassers is so contradictory to a dismissal of the suit as against some others that it cannot be passed.
It was further held that the mere fact that one of the trespassers had died and his heirs had not been brought on the record, did not make it impossible to pass a decree in favour of the plain-tiffs against the trespassers who were before the Court though it was pointed out that such a decree-would be against the defendants in their personal capacity.
With great respect, I am unable to accept this decision as correct because such a decree, as I see it, could always be defeated by reason of the fact that the heirs of the other trespassers against whom the suit or appeal abated would be found to be in joint and indivisible possession of the immovable property. A contrary view appears to have been taken in a later decision in the same High Court in Sheoram v. Prem Shanker, AIR l950 All 436 (N), though no reference to Shibban's case (M), is made therein. It may also be pointed out that Shibban's case (M) was specifically noticed by the Calcutta High Court in Hakir Mohamed v. Abdul Majid, AIR 1953 Cal 588 (O), and was not followed.
14. The result is that, for the reasons set out above, the correct conclusion in the circumstances of this case is that the plaintiff's appeal in the court below abated entirely and not merely in part against Bherunlal deceased, and once that appeal so abated, it must follow that the prelimi-nary objection succeeds and the present appeal be dismissed, but under the circumstances I would make no order as to costs.
15. Leave to appeal is refused.