- (1.) Raj Kumar son of Babu Ram, owner of the suit property, was murdered when he was very young and as he left no descendant or a widow, his estate was taken possession of by his fourth degree collaterals, respondents in this appeal. The appellants filed the present suit for possession of the suit property claiming themselves to be the better heirs, being the brothers and sister of Kartar Kaur, alleged to be the mother of the deceased Raj Kumar. The suit was filed against the collaterals alleging them to be joint tort-feasors.
(2.) The suit was contested by the respondents who denied the relationship of Kartar Kaur with Raj Kumar as well as of the plaintiffs with Kartar Kaur. The trial Court after recording the evidence held that the plaintiffs had failed to prove either that Raj Kumar was the son of Kartar Kaur from the loins of Babu Ram or that the plaintiffs were the brothers and sister of Kartar Kaur. The suit was consequently dismissed. On appeal, the learned District Judge Hoshiarpur, maintained the finding of the trial Court and confirmed the decree vide judgment dated April 25, 1975. Still dissatisfied the plaintiffs have come up in this second appeal.
(3.) During the pendency of this appeal it was found that Bhagwan Singh one of the defendants had died when the first appeal was pending in the lower appellate Court. Consequently, the appellants moved an application for impleading his heirs as respondents to the appeal and for condonation of delay in impleading them as party to the appeal. The application for condonation of delay was declined by me vide order dated November 28, 1978. As a result thereof, the appeal against the heirs of Bhagwan Singh was dismissed as barred by time. The question which now arises for determination is as to whether the appeal against the remaining respondents is validly constituted. According to the learned counsel for the appellants, the plaintiffs had separate and distinct cause of action against each of the collaterals of Raj Kumar who had taken possession of his estate on his death and, therefore, the appeal against the remaining respondents would be maintainable even in the absence of the heirs of Bhagwan Singh, one of the deceased respondent. In support of his contention, the learned counsel relied on the following observations of the Supreme Court in Municipal Board v. Pannalal Bhargva and Others, 1976 AIR(SC) 1091: "Where in an appeal by a Municipal Board in a suit against several defendants for accounts, one of the defendant-respondents dies and the appeal abates against him, the appeal as a whole does not abate, as the remaining respondents could be individually sued for rendering accounts and for recovery of the amount due from them." The argument of the learned counsel is, however, utterly fallacious. According to the allegations in the plaint, on the death of Raj Kumar, the respondents, his collaterals, were alleged to have taken possession of the suit land and they were sued as joint tort-feasors. There is no allegation in the plaint that the respondents were in separate possession of the property. According to the allegations made it cannot, therefore, be said that the plaintiffs either had distinct and separate cause of action against each of the respondents or that they could maintain a separate suit against the respondents. Reliance on the Municipal Board, Lucknow's case was, therefore, wholly misplaced and the observations noticed above are of no assistance to the appellants. That apart, in a case where the judgment under appeal proceeds on a ground common to all the respondents and there is no distinct and separate cause of action against all the respondents, it would not be open to the appellate Court to proceed with the appeal in the absence of one of the respondents in whose favour the judgment had been delivered by the Court below because in the case of the acceptance of the appeal it would result in two contradictory judgments. Reference in this respect may be made to the decision of the Supreme Court in Sri Chand and Others v. M/s Jagdish Pershad Kishan Chand and Others, 1966 AIR(SC) 1427wherein it was held that an appellate Court has no power to proceed with an appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under Order 41, Rule 4 of the Code of Civil Procedure when the decree proceeds on a ground common to all the plaintiffs or the defendants appealing from the decree and any of them dies and the appeal abates so far as he is concerned. In Sri Chand's case , the decree was being executed against the sureties. The objections filed by the sureties were dismissed by the executing Court whose order was confirmed on appeal by the High Court. In the appeal before the Supreme Court on a special leave, one of the sureties died and his appeal was dismissed as having abated. The learned counsel for the appellants contended that the appeal of the other sureties could proceed even in the absence of one of the sureties because the liability of the sureties was joint and several. The contention was turned down by their Lordships of the Supreme Court with the observations noticed above. In the present case also, the judgment of the lower appellate Court proceeds on a common ground that the plaintiffs have failed to prove either that they were brothers and sister of Kartar Kaur or that Kartar Kaur was the mother of Raj Kumar, deceased. In view of the pronouncement of their Lordships of the Supreme Court in Sri Chand's case , this appeal has to be held as incompetent on this ground also.;