C.M. Lodha, J.
1. This is a defendant's second appeal arising out of a suit for declaration and possession.
2. A preliminary objection has been raised against the maintainability of the appeal on the ground that all the legal representatives of the deceased appellant Abdulla have not been brought on the record, and, therefore, the whole of the appeal abates.
3. For the decision of the preliminary point also it is necessary to narrate the facts in brief giving rite to the appeal.
4. Alibux, Khudabux, Nabibux and Hassainbux purchased a piece of land measuring 14 yds x 15'9 Girah by a sale deed Ex. 2, dated 7-2-1893 Nabibux died leaving behind three sons Mohammad Bux, Mahboob and Peerbux. Khudabux also died leaving behind three sons Molabux, Kalia and Alladir. Molabux died issueless. Kaliya died leaving behind 2 sons and one daughter. They are Abdulla (Defendant No. 1) Munir (defendant No. 2) and Mst. Muniran (defendant No. 3). Alladin died leaving behind one son Noor Mohammed, who is the plaintiff. The dispute is regarding the shares of Nabibux and Khudabux in the land purchased vide sale deed Ex. 2. The plaintiff Noor Mohammed's case is that he got the full share of Nabibux by a will made by Mohammed Bux and Peerbux in his favour, and he also got half share of that portion of land which belonged to Khudabux and other half portion of Khudabux went to Abdulla, Munir and Mst. Muniran defendants Nos. 1 to 3. It was alleged by him that in June 1959 Abdulla took forcible possession of Khudabux's share of land marked B and C in the site-plan Ex. 1 annexed to the plaint and made constructions on portion 'B', It was also alleged that Abdulla encroached upon a part of the share of Nabibux marked 'A' in the plan It was, therefore, prayed that it may be declared that Abdulla is entitled to the whole of the portion of the land which had fallen to the share of Nabibux and was consequently entitled to get possession of the portion marked 'A'. so also it was prayed that a decree for possession of the half shire in the portion marked 'B' and 'C' be granted in his favour. Abdulla and Munir filed separate written statements and the case proceeded exparte against Mst. Muniran Beth of them opposed the plaintiff's claim. The case was. however, mainly contested by Abdulla alone as Munir did not put in appearance after having filed the written statement. I am, therefore, mainly concerned with the defence put by Abdulla. His case was that the portions marked 'A', 'D' and 'E' had actually fallen in the share of Khudabux and not portions 'B' and 'C as pleaded by the plaintiff Noor Mohammad. As a natural corollary he also pleaded that the portions marked 'B' and 'C in the plan Ex. 1 had fallen to the share of Nabibux and the widow of Nabibux had gifted the whole of the share of Nabibux to him. In this view of the matter Abdulla's contention was that the plaintiff was not entitled to any relief.
5. After recording the evidence led by the parties the learned Munsiff (West) Jaipur City accepted the defendant Abdulla's version and, dismissed the plaintiff's suit. Aggrieved by the judgment and decree of the trial court the plaintiff Noor Mohammed filed an appeal in the Court of District Judge, Jaipur City which was transferred for disposal to the Court of Senior Civil Judge, Jaipur No 2, who by his judgment and decree dated 18-9-1962 allowed the appeal, set aside the judgment and decree of the trial court, and held that the defendants Abdulla, Munir and Muniran will get portions 'B' and 'C' and will have entrance to these portions towards the south. He also granted a declaration in favour of the plaintiff that he is the owner of portions 'A', 'D' and 'E' and will have a right of way in between 'A' 'D' and 'E' and the defendants will have no right to use any portion of the land lying within the portions 'A', 'D' and 'E'. A decree for possession in respect of these portions was also granted in favour of the plaintiff.
6. Dissatisfied with the judgment and decree of the learned Senior Civil Judge, Jaipur City No. 2 the defendant Abdulla filed this second appeal.
7. In light of the facts mentioned above, it would now be appropriate to deal with the preliminary objection During the pendency of this appeal Abdulla died on 1-10-1966 and an application was moved in this Court on 2-1-1967 by Nasirudin one of the sons of deceased Abdulla to the effect that he alone was entitled to be substituted as the legal representative of the deceased Abdulla. It was mentioned in the application that Abdulla had left behind three sons viz, the applicant Nasirudin, Babu and Muniruddin alias Munnu, Abdulla's widow Mst. Sakoran, three daughters viz. Bismillah, Mst. Majidan and Mst. Noonisa. It was, however, stated that the applicant Nasuridin alone had made constructions on the disputed land, and was alone in exclusive possession of the same. It was further stated that Babu, and Mst. Noonisa had gone to Pakistan and Mst. Bismilla and Mst. Majida are married and have no interest in the disputed property. As regards the widow Mst. Sakoran it was stated that she was residing with the applicant Nasirudin and had no adverse interest against the applicant, who was maintaining her. As regards the third son Munirudin the applicant, alleged that he was living separately in another house, and had no interest in the property in question. On the aforesaid grounds it was prayed that the appellant Nasirudin alone may be substituted as appellant in place of the deceased Abdulla. Notice of this application was given to all the heirs of Abudulla as well as to the respondents Noor Mohammed (plaintiff, Munir and Mst Muniran-defendant respondents. The application was opposed by the plaintiff Noor Mohammed, who stated that all the legal representatives of the deceased Abdulla were necessary parties and in their absence the appeal cannot proceed and must be dismissed as having abated.
8. It may be relevant here to observe that none of the heirs of Abdulla have appeared to contest the application filed by Nasirudin. The notices sent to Mst. Sakoran, widow of Abdulla and Muniruddin were accepted by the applicant Nasirudun himself Consequently an objection was taken by the learned counsel for the respondent that the aforesaid two heirs of Abdulla cannot be said to have been served with the application of Nasiruddin. Having seen the force in this objection the learned counsel tor the appellant has filed in Court today two affidavits one by Mst. Sakoran and the other by Munir the purport of which is that they have no objection to Nasirudin being alone impleaded as the legal representative of Abdulla Apart from these two heirs the notice of the application has been served on the other heirs of Abdulla also, and none of them has come forward to oppose the request of Nasirudin. For the decision of this matter therefore it must be taken for granted that so far as the other heirs of Abdulla are concerned they have no objection to Nasirudin alone being impleaded as the appellant in place of deceased Abdulla. The objection of the learned counsel for the respondent, however, is that the other heirs of the appellant, Abdulla have been deliberately not impleaded as legal representatives even though they are undoubtedly co-heirs with the applicant Nasirudin. It is also argued that Nasirudin cannot represent the interest of all ten other heirs of Abdulla, as Abdulla's estate cannot be said to be sufficiently represented. It is submitted that the decree passed by the lower court should be deemed to have become final against the other heirs of Abdulla, who have not been brought on the record, and consequently the appeal must be dismissed as having abated. In support of his contention the learned counsel has relied upon Ghisiram v. Smt. Manbhari 1969 RLW 319, Padma Ram v. Surja ILR (X) Raj, 593, and Pyli v. Varghese AIR 1956 T.C. 147.
9. On the other hand learned counsel for the appellant has stated that there is no fraud and collusion between the various heirs of Abdulla whose names have been disclosed by the applicant Nasirudin himself in his application dated 2.1.1967 and that the other heirs of Abdulla have no interest in the property in dispute. It is also argued that the estate of Abdulla is sufficiently represented by the appellant Nasirudin alone. In the alternative he has submitted that if the Court comes to the conlusion that the other heirs of Abdulla are necessary parties to the appeal they may even now be impleaded as proforma respondents to the appeal. In support of his contention he has relied upon Dayaram v. Shyam Sundari, AIR 1965 SC 4049, Mohd. Sulaiman v. Mohd. Ismail : 1SCR937 , and Dolai Maliko v. Krushna Chandra : AIR1967SC49 . and a few other decisions of various High Courts.
10. It was observed in Dolai Maliko v. Krushna Chandra : AIR1967SC49 that in a case where on the death of one of the appellants, some of his heirs apply for bringing themselves on record as his legal representatives; unless there is fraud or collusion or there are other circumstances which indicatet that here has not been a fair or real trial or that against the absent heirs there was a special case which was not and could not be tried in the proceeding, there is no reason why the heirs who have applied for being brought on record not be allowed to reprensent the entire estate including the heirs not brought on record.
11. In the present case there is no question of any fraud or collusion. No body has appeared from among the other heirs of Abdulla to oppose the application of Nasirudin to be substituted in place of Abdulla. It has been held in a large number of cases that the substitution of one of the heirs as legal representative of the deceased may be deemed to have been for the benefit of the entire inheritance which comes into being on the death of the sole appellant and the entire estate can be said to have been represented by one of the legal heirs. In Mohd. Sulaiman v. Mohd. Ismail : 1SCR937 it was observed that the rule of representation of estate is one of procedure and not of personal law, and applies to a muslim debtor's estate as well as to a Hindu debtor's estate. In the present case the other heirs of Abdulla who have not been brought on the record are the widow, sons and daughters of Abdulla who do not claim any adverse interest in the property against Nasirudin. Two of them, as already stated above, had left for Pakistan and the interests of all them are indentical with those of Nasirudin in the present litigation The judgment and decree which may be passed against Nasirudin would be binding on them particularly because they have not cared to put in appearence in response to the notice given to them of the application filed by Nasirudin. It may, however, be pointed out here that Nasirudin's assertion that he alone is entitled to get the property in question as Abdulla's heir cannot be accepted and all that can be said in this litigation is that he may be deemed to represent Abdulla's estate. In the circumstances of the case therefore I hold that Nasirudin may be taken to represent the estate of the deceased Abdulla for the purposes of this litigation. The view, I have been persuaded to take, is in consonance with the principles laid down by their Lordships of the Supreme Court in the three cases referred to above. In this view of the matter there is no room for argument that there would be any conflict of decrees against the other heirs of Abdulla who have not been brought on the record, inasmuch as they would be bound by any decision which may be given in favour of or against Nasirudin, who must be deemed to represent the estate of Abdulla in the present litigation.
12. I do not see any substance in the contention raised on behalf of the respondents that the application made by Nasirudin is not bonafide. All the heirs of Abdulla have been mentioned in this application and it appears that Nasirudin bonafide believed that since he alone was in possession of the property it would be sufficient to get him alone subtituted as the legal representative of Abdulla. He has no doubt asserted that the other heirs of Abdulla have no concern with the disputed property. This may be correct or may not be correct but it cannot be said that it is necessarily false because none of the other heirs have come forward to controvert this allegation. Be that as it may, it cannot be said in the facts and circumstances of the present case that the application moved by Nasirudin is not bonafide. Learned counsel for the respondent placed strong reliance on Ghasiram v. Smt. Manbhari 1969 RLW 319. The facts of that case are distinguishable, and the principle laid down therein has ho application to the facts and circumstances of the present case. In this view of the matter I have come to the conclusion that the appeal has not abated.
13. This brings me to the consideration of the appeal on merits. Learned counsel for the apsellant submits that the learned Senior Civil Judge has made out a new case which was not set up by any of the parties. It was not the case of either of the parties that a decree for partition may be granted in respect of two the portions of the land belonging to Nabibux and KhudaBux. On the other hand both the parties had claimed exclusive ownership with respect to certain portions of land. The plaintiff's case was that he was entitled to the whole of the land marked 'A',' D' and' E' which had fallen to the share of Nabibux by virtue of the will made by Mohammed bux and Peer bux in his favour, and he was also entitled to half of the land marked 'B' and 'C' which belonged to Khudabux. Abdulla also claimed to be the exclusive owner of 'B' and 'C which was alleged to be belonging to Nabibux on account of the alleged gift by the widow of Nabibux in his favour and he also claimed the portion marked 'A' as heir of Kaliya son of Khudabux, and also on the basis of his exclusive possession for a long period extending over 50 years. Both the parties led evidence in support of their respective cases and the trial court believed Abdulla's case. It was very well open to the learned first appellate court to accept the view of the trial court or to reject it and if it found that the plaintiff's version is not substantiated, and no relief could be granted to him, the only course which would have been left to him was to have dismissed the suit leaving the parties to seek such further remedy as they may be entitled to in law. But instead of doing that the learned Senior Civil Judge passed an order for partition, and allotted specific shares to the parties. In my opinion this could not be done, firstly, because the suit was not for partition, and secondly so many considerations would come in before a decree for partition could be passed, viz. the question of all the concerned parties being on the record, the question of bringing the whole property belonging to Nabibux and Khudabux besides the land in dispute for the purpose of effecting a complete final partition. It also appears to me that both the preliminary as well as final decreee for partition could not have been passed as was done by the learned Senior Civil Judge. Learned counsel for the parties agree that Mahboob one of the sons of Nabibux has left some heirs and atleast one of them Noor Mohammed has also come in evidence as P.W.2. Thus in short so many considerations which are extraneous to the scope of the present suit would have a good deal of bearing on the decision of question of partition.
14. There is yet another aspect of the case which does not seem to have attracted the attention of the learned Senior Civil Judge and it is this, that even if no partition had taken place by metes and bounds and the parties had accepted each other's possession over certain portions of land for a long period without any objection, in that case the points in dispute in the suit could be decided on the basis of possession. Taking all the circumstances into consideration I am persuaded to take the view that the decree for partition passed by the lower court in the present suit cannot be maintained and must be set aside. Learned counsel for the respondent also submitted that on the view that I have taken of the whole case the proper course would be to send the case back to the first appellate court for a fresh decision. '
15. The result of the foregoing discussion is that I allow this appeal, set aside the judgment and decree of the Senior Civil Judge, Jaipur City No.2 and send the case back to the learned District Judge, Jaipur for restoring the appeal to its original number and to decide it afresh on the lines indicated above. In the circumstances of the case I leave the parties to bear their own costs.
16. Learned counsel for the respondent prays for leave to appeal to Division Bench. However, I do not consider it a fit case for grant of leave. The prayer is disallowed.