G.C. Mital, J. - (1.) A Suit for partition of joint properties was filed by the plaintiffs -respondents. The trial Court by its judgment and decree dated 1st December, 1961 passed the impugned decree for partition of the joint properties and the shares as mentioned in the Plaint. Against the judgment and decree of the trial Court, two First Appeals were filed in this Court R.F.A. No. 1 of 1962 was filed by defendants Nos. 3 to 5 who were alienness of some part of the property of defendants Nos. 1 and 2, and R.F.A. No. 13 of 1962 was filed by defendants Nos. 1 and 2. During the pendency of the R.F. As one of the defendant -respondent, namely, Banke Lal died and in R.F.A. No. 1 of 1962 an application for bringing his legal heirs was filed more than two years later whereas in R.F.A. 13 of 1962 no such application was filed. At the hearing of the two R. F. As a preliminary objection was raised that in view of the death of Banke Lal, one of the co sharers in the property who was party to the suit, the appeals stood abated and in R.F.A. No. 1 of 1962, in which application was filed more than two years later, no ground for condonation of delay was mentioned. As such both the appeals abated. A learned single Judge of this Court, following the dictum of the Supreme Court in Ramagya Prasad Gupta v. Murli Prasad : A.I.R. 1972 S.C. 1181 held that the appeals stood abated in to.
(2.) DEFENDANTS Nos. 1 and 2, who had filed R.F.A 13 of 1962, remained satisfied and only defendants Nos. 3 to 5, who are aliennes of some part of the property as defendants 1 and 2, have come up in letters patent appeal. The learned Counsel for the appellants has argued that there is no abatement as the appeal was filed by the defendants and if one of the co -defendants, who is respondent in the appeal, dies, then there is no abatement, For this submission of his he has relied on a judgment of the Supreme Court in Mahabir Prasad v. Jage Ram : A.I.R. 1971 S.C. 742. The aforesaid decision of the Supreme Court is not applicable to the facts of the present case and is clearly distinguishable. In the Supreme Court case the interest of all the defendants was common and if appeals were to be allowed at the instance of anyone of the defendants all the defendants would have got its benefit by virtue of Order 41, Rule 4, C.P.C., whether the other co -defendants were impleaded as respondents or not in the Supreme Court case one of the co -defendants whose interest was common with the appellants, died during the pendency of the appeal. The Supreme Court came to the conclusion that death of such a defendant would not affect the pendency of the appeal as such a co -defendant may not have been eves impleaded as a respondent and in spite of that the appeal was maintainable and could proceed and, therefore, merely by his death and failure to bring his legal representatives on the record, there was no abatement nor did the appeal become incompetent. The above judgment cannot be applied to the facts of this case as in a suit for partition all parties are plaintiffs and all parties are defendants as the Court has to decide about the share of each one of them in the properties in dispute For the matter, the interest of each party, whether as plaintiffs or as defendants, is mutually exclusive and once the share of each one of the parties to the suit is determined by the trial Court, the share of each one of them cannot be disturbed in appeal without impleading all the parties to the suit in the trial Court in appeal. In a case of partition if one of the parties, whether a co -defendant or a co -plaintiff, is left out of the array of the parties, then the appeal itself will become incompetent and the Court will not be able to proceed with the same in the absence of that party. The Supreme Court case will be applicable only where all the plaintiffs or all the defendants have a joint and common case against each other and at the instance of any one of them whole of the relief could be granted or denied. This is not so in a suit for partition. To the facts of the present case the ratio of the Supreme Court judgment in Ramagya Prasad Gupta's case (supra), relied upon by the learned Single Judge, is fully applicable and the appeal was rightly held to have abated by the learned Single Judge. We see no reason to differ from that decision and consequently dismiss this appeal with costs.
(3.) I agree.;