- (1.) Incompetency of these appeals due to partial abatement is the question.
(2.) Appellants are the erstwhile proprietors. Respondents are erstwhile tenants who became bhumidhar under the Delhi Land Reforms Act. Land comprising approximately four thousand acres, was acquired under Land Acquisition Act by the Government. Since compensation runs in crores claims were filed by the proprietors, the tenants and the Goan Sabha. The Additional District Judge rejected the claim of proprietors and the gaon sabha. Two sets of appeals were filed in the High Court one by Gaon Sabha and other by proprietors. in the latter appeal some of the appellants died and application for bringing on record of some others was dismissed. Consequently their appeals were abated by the High Court. Appeals of others were dismissed as incompetent as even though shares of each proprietor was defined the Khata was joint.
(3.) Law of abatement is well settled. Death of appellant or respondent coupled with failure to bring on record his legal representative within time results in abatement of the appeal. Where there are more than one appellant affect of such abatement results in rendering entire appeal incompetent if the decree is joint or indivisible. Difficulty, however, has arisen in application of this principle to the facts of case. In State of Punjab v. Nathu Ram, 1962(2) SCR 636 it was held that an appeal directed against a joint decree abated even if shares were specified. It was also a case of compensation in acquisition proceedings. The award was joint in name of two brothers. It was held that failure of the State to bring on record legal representatives of one of the brothers resulted in abatement of not only appeal against him but it could not be proceeded with even against others. Same principle was reiterated in Indian Oxygen Ltd. v. Ram Dhar Singh & Others, Civil Appeal No. 1424 of 1966 decided on 24th September, 1968 . In Kishan Singh & Others v. Nidhan Singh & Others, Civil Appeal No. 563 of 1962 decide on 14th December 1964 and Jhingan Sing v. Singheswar Singh & Others, Civil Appeal 114, 222 of 1958 decided on 12th April, 1965 , the ratio laid down in Nathu Ram's case was taken a step further and it was held that if a suit was filed by more than one land holder against more than one tenants then the dispute being between the class of land holders on one side and class of tenants on the other, the death of one or the other resulted not only in partial abatement but incompetency of the entire appeal as it could result in two conflicting decrees. However, all these decisions were examined in Harihar Prasad v. Balmiki Prasad, AIR 1975 SC 733 in which the suit was filed by plaintiffs for their 1/12th share. One of the plaintiffs died and his legal representatives were not brought on record. It was held that since each of the plaintiff was entitled to his own specific share and he could have sued and got a decree for it the suit or appeal could not abate merely because all of them joined in one common suit. It was held that in such circumstances the suit or appeal could abate against such plaintiff only but not as regards other plaintiffs or appellants. It was pointed out on behalf of respondents that in fact in Harihar Prasad's case one of the legal representatives of the deceased was on record and, therefore, estate was fully represented.- Therefore the observation made by the Court was only academic and it did not arise to be adjudicated upon. In our opinion, the Court decided the question of abatement with two aspects, one, that the appeal did not abate even when khata and decree was joint because the plaintiffs had specified share and other that the estate was sufficiently represented. Since the ratio in Harihar Prasad's case on the first aspect needs to be reconciled with what was said by this Court in Nathu Ram's case and in Indian Oxygen case, we are of the opinion that the papers of these appeals may be laid before Hon'ble the Chief Justice for placing them before a larger bench as Harihar Prasad's case and Nathu Ram's case both were decided by a three Judge Bench.;