- (1.) If two of the five appellants die during the pendency of their appeal arising out of a suit instituted by them for recovery of Khas possession of a certain plot of land, reckoning the sole defendant as a trespasser thereon, and if the appeal against the two dead appellants abates, no steps having been taken for substitution of their legal representatives, will the appeal as a whole abate That is the main question debated in this revisional application under Section 115 of the Civil Procedure Code 5 of 1908 at the instance of the three surviving plaintiffs appellants. The learned Subordinate Judge, seized of such appeal, holds, the appeal as a whole abates. Mr Bijan Behari Das Gupta, appearing for the appellants petitioners, submits, it does not. Mr. Jnanendra Nath Bakshi, appearing for the respondent opposite party, contends for the view taken by the learned Subordinate Judge.
(2.) The facts which have led up to this revisional petition need not be referred to further than as follows: The land in controversy is plot No. 952 under Khatian No. 581 of mouza Maheshmati within the jurisdiction of Englishbazar Municipality and police station: Englishbazar being the name by which the municipality and police station of the town of Maldah are known. A plot as this admeasures 0113 acre of land: vide the relevant Khatian, exhibit A. One Dwark Chandra Das held it as a Korfa tenant on a rent of Rs. 10 under Sahadutunessa. In an action in ejectment brought by her it was suit No. 239 of 1938--a compromise decree, exhibit 1, came to be recorded on February 23, 1939. By virtue thereof, eviction of Dwarak was ordered. But its effect was postponed. Dwarak having been given a grace period of three years: 1346 to 1348 B. S., during which he was permitted to slay where he was, namely, in the land in controversy, on payment of Rs. 10 a year as rent (Khajna). The further stipulation was that should Dwarak fail to quit by 1348's end, Sahadutunessa would be able to put her decree for eviction to execution. Dwarak did not quit, as he had agreed to do, on the expiry of 1348 B. S. Sahadutunessa was about to lew execution of the compromise decree, as indeed she was entitled to do in terms thereof But in the end she took pity on her quondam tenant, as is stated on her behalf, and allowed him to slay on for his life as a licensee on a licence fee of Rs 10. While in occupation so, and running a shop there, he died in 1949. Durga Charan Das, the sole opposite party before me, is his son. His father's licence having been no more, he was asked to quit time and again. But he refused. Hence the suit on September 27, 1951, by Sahadutunessa's five legal representatives two sons and three daughters--(Sahadutunessa having died meanwhile) for recovery of possession of plot No, 952 after eviction of Durga, a mere trespasser, therefrom. The suit failed in the Court of first instance. An appeal taken against that came to little. The first Court, as also the Court of appeal, held that the suit was barred by Section 47 of the Civil Procedure Code. On the question of tenancy or licence, the first Court found that the position of Dwarak, and after his death, of Durga continued "in the land as of a tenant"; whereas the appellate Court confined its finding to Dwarak having been a tenant. In a second appeal taken to this Court, Purushol-tam Chatterjee, J. reversed the decision of the Courts below on Section 47 having stood between the plaintiffs and their success. More, his Lordship directed a remit to the lower appellate Court with a view to coming to a finding as to the status of the defendant, making it clear: "If the Court finds that he is still a tenant the suit will be dismissed. If the Court finds that the defendant is not a tenant, the suit should be decreed." During the carriage of the appeal on remit, this question of abatement arose. The two daughters of Sahadutunessa. Bibi Jobeda Khatoon (appellant No. 3) and Bibi Jinnatanessa (appellant No. 4), died. No steps were taken for substitution of their legal representatives. In the circumstances, the learned Subordinate Judge held that "the entire appeal" had abated. Hence this rule.
(3.) The principle the learned Judge has governed himself by is, in his own words: "The principal relief, namely, recovery of possession, cannot be granted unless the entire body of owners are represented in the suit. A suit for possession cannot be decreed in a suit brought by a fractional sharer alone. Applying this principle, the present appeal by the surviving appellants alone is incompetent." I am unable to consider this a sound principle to go by, the nature of the suit being what it is: a suit for recovery of possession from a trespasser. Whether the suit is good or bad on merits is another matter. As Chatterjee, J. has directed, if the learned appellate Judge finds Durga to be a tenant, the suit will fail, the death of the two of the appellants and the consequenlial abatement being then neither here nor there. If however the finding is that Durga is not a tenant, but a trespasser, the suit shall succeed, as the further direction of Chatterjee, J. is In this contexl, it matters little that the appeal has abated if that against two of the five appellants Because, it is now well held that a co-owner is entitled to sue a trespasser for the benefit of all. And what a type of co-owner do I see here A Mahomedan co-owner to ascertain whose share all you have to do is a little arithmetic. To run on with the principle I go by. there is the observation of Rankin, C. J. (as his Lordship then was) in Letters Patent Appeal No 104 of 1928, quoted by Nasim Ali, J in Joy Gopal Singha v. Prohodh Chandra Bhattacharjee, 40 Cal WN 81: (AIR 1935 Cal 646): the well setiled practice in this Court is to give a decree "for joint possession together with the trespasser and leaving it to the plaintiff to work out his further rights by a suit for partition." It is no good sniffing at such a decree, about which the learned Chief Justice says further: "I do not think there is anything unusual in the form of the decree." On a point as this, there is a long line of decisions, some of which I collected in a judgment rendered by me, if I may quote my own decision without any impropriety on my part, in Shew Prasad Agarwalla v. Anil Ganguli, (1984) 68 Cal WN 786 at p. 802: 1963 Cal LJ 75.;