Jagat Narayan, C.J.
1. This is a reference by a learned Single Judge before whom a preliminary objection was taken when the present second appeal came up for hearing that the appeal has abated. As the question was not free from difficulty this reference was made.
2. The facts necessary for disposing of the reference are these. Rahimulla & Karim Bux were the owners of adjacent houses. In front of their houses was a piece of land, alease of which was granted in favour of Smt. Sakina by the Urban Improvement Board, Jaipur. Smt. Sakina hadstarted constructions over the land. Rahimulla and Karim Bux claimed private rights of easement over the land.
They also claimed that the land was a public thoroughfare. On these grounds they prayed for a decree perpetually restraining Smt. Sakina from constructing over the land in dispute and for granting a mandatory injunction against her for demolishing the constructions already made. The suit was contested by Smt. Sakina. The trial court decreed it. The first appellate court dismissed it. Rahimulla and Karim Bux preferred a second appeal. During the pendency of this appeal Karim Bux died. His legal representatives were not brought on record. When the second appeal came up for hearing before the learned Single Judge a preliminary objection was raised on behalf of Smt. Sakina that the whole appeal abated as there was one decree against Rahimulla and Karim Bux which was not divisible.
3. We have heard the learned counsel for the parties and we are of the opinion that Rahimulla's appeal does not abate.
4. Rahimulla and Karim Buxhad separate causes of action against Smt. Sakina and they could have brought two separate suits for the reliefs which they claimed in this one suit which they brought jointly. One suit was brought under the provisions of Ordeir 1, Rule 1. Civil P. C. which runs as follows :--
'Who may be Joined as plaintiffs.--All persons may be joined in one suit as plaintiffs in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist. Whether jointly, severally or in the alternative, where if such persons brought separate suits, any common question of law or fact would arise.'
5. The right of relief arose to both the plaintiffs out of the same series of acts namely the grant of lease in favour of Smt. Sakina and the start-ing of constructions by her on the land in dispute. On account of the death of Karim Bux during the pendency of the appeal the appeal and the suit qua Karim Bux therefore stood finally dismissed. But Rahimulla had an independent risht of maintaining a suit against Smt. Sakina and that right survived to him after the death of Karim Bux. The case therefore falls under Order 22, Rule 2, Civil P. C.
6. The facts of the present case are somewhat similar to the facts of the case in Works Manager, Central Rly. Workshop, Jhansi v. Vishwanath, AIR 1970 SC 488. In that case several workers had filed a joint petition underthe Payment of Wages Act. An order was passed in their favour on their joint application by the Additional District Judge. This order was affirmed on appeal by the Allahabad High Court. The Railway appealed to the Supreme Court against the order of the Allahabad High Court. All the workmen were impleaded as respondents to this appeal. One of them died during the pendency of the appeal, but his legal representatives were not brought on record. It was contended on behalf of the workmen that the appeal should be held to be incompetent because the reversal of the impugned order as against them 'would give rise to conflicting decisions on the point. This argument was repelled. Learned counsel for the respondents relied on four decisions of the Supreme Court. They are all distinguishable on facts.
7. In State of Punjab v. Nathu Ram, AIR 1962 SC 89 certain land belonging to two brothers L and N jointly was acquired for military purposes and on their refusal to accept the compensation offered by the Collector, the State Government referred the matter for inquiry to an arbitrator under Rule 10 of the Punjab Land Acquisition (Defence of India) Rules. 1943. The arbitrator passed a joint award granting a higher compensation and also certain sum on account of income-tax. The State Government appealed against the award to the High Court. During the pendency of appeal L died and as his legal representatives were not brought on record, the appeal abated against him. It was held that the appeal against N alone could not proceed. The subject-matter for which the compensation had been awarded was one and the same land and the assessment of compensation so far as L was concerned having become final, there could not be different assessments of compensation for the same parcel of land. In the present case if Rahimulla and Karim Bux had chosen to file two separate suits one could have been dismissed and the other could have been decreed and no inconsistency would have arisen as each case is decided on its own evidence and the causes of action for Rahimulla and Karim Bux were distinct.
8. In Rameshwar Prasad y. Shambehari Lal, AIR 1963 SC 1901 a suit for ejectment was brought againsttwo defendants by 9 persons who were the landlords of the property in suit. One of them died during the pendencyof the appeal which was filed by all the 9 plaintiffs and his legal representatives were not brought on record. The remaining 8 plaintiffs were obviouslynot competent to maintain the suit against the defendants. It was not even contended that Order 22, Rule 2 applied to the case. What was contended was that relief could be granted to the remaining 8 appellants under Order 41, Rule 4 or Order 41, Rule 33, Civil P. C., but their plea was not accepted.
9. In Union of India v. Shree Ram, AIR 1965 SC 1531 there was a joint and indivisible decree in favour of two plaintiffs who sued the Union of India for the recovery of a sum of Rs. 13,448/- for compensation on account of loss and damage suffered . by the plaintiffs owing to non-delivery of 11 bales of cloth. One of the plaintiffs died during the pendency of the appeal and his legal representatives were not impleaded within time. It was held that the whole appeal abated. The two plaintiffs could not have brought two separate suits to recover the amount. In the present case Rahimulla and Karim Bux could have brought separate suits against Smt. Sakina.
10. In Sri Chand v. Jagdish Pershad, AIR 1966 SC 1427 the first respondent filed suit No. 43/52 for a decree for Rs. 42,914-10-0 being the amount due at the foot of the hypothecation account and for sale of goods fin satisfaction of the amount due. Later in 1962 he filed a suit for possession of hypothecated goods as well and both were consolidated. The first respondent applied for appointment of a receiver and the court directed the second respondent to furnish security in the sum of Rs. 50,000/-. Pursuant to this Order 5 persons stood sureties for satisfaction of the decree. Their liability was joint and several.
11. A decree was passed against the second respondent for Rs. 42,914-10-0 with costs and future interest. The first respondent then applied to execute the decree against the sureties. The sureties objected to the execution of the decree on various grounds. These objections were rejected by the Commercial Subordinate Judge and this order was confirmed by the Punjab High Court. Three of the sureties filed an appeal before the Supreme Court by special leave. Out of them Basanti Lal died during the pendency of the appeal and his legal representatives were not brought on record within the time allowed by law. The appeal by BasanH Lal accordingly abated and the appeals by the other two sureties had become incompetent on account of this fact. It was contended before the Supreme Court that the liability of the sureties was joint and several and therefore it waspermissible to the plaintiff to recover the whole of the decretal amount irom 4 of the sureties which were on record. Consequently it was urged that the appeal of the 3 sureties should be held to be competent. Their Lordships held that no doubt the liability of the sureties was joint and several but the mere fact that the obligation arising under the covenant may be enforced severally against all the covenantors does not make the liability of each, covenantor distinct.
12. In the present case both Rahimulla and Karim Bux had distinct causes of action against Smt. Sakina.
13. We accordingly hold that Rahimulla's appeal has not abated.
14. The learned Single Judge alsoreferred to the Division Bench the second appeal for decision, but has given no reason for doing so except that the second appeal is a very old one. We do not consider this to be a sufficient rea-son for making a reference. We therefore direct that the second appeal shall be laid for early hearing before Hon'ble Lodha, J.
15. The costs of this reference shall abide the result of the second appeal.