- (1.) DURING the pendency of the second appeal in the Board of Revenue, an application was filed by the counsel for the respondents that since Dhanna respondent died on 21-970 and no application for bringing his legal representative on record having been filed within 90 days, the appeal automatically abates. On behalf of the appellant it was contended that since on 1-5-70 a compromise had been effected between the parties which was presented duly attested in the Board, it was not necessary to bring his legal representatives on record. It was further stated that in the compromise Dhanna respondent admitted the appellant as the Khatedar tenant of the land in dispute and further acquiesced that the appellant will continue in possession of the same.
(2.) ARGUMENTS were heard on behalf of the parties on this issue. The learned counsel for the respondents stated that a suit u/s. 183 of the Raj. T. Act was filed by the present appellant Mana against Gordhan, Dhanna, Veerma, Jasdan, Devidan & Laxmidan. This suit was decreed by the trial court on 30-7-66. As Gordan defendant died during this period, his legal representatives joined Dhanna & Veerma in filing an appeal against this decree before the R. A. A and the other three defendants viz Jasdan, Devidan & Laxmidan were joined as pro forma respondents. The R. A. A. accepted the appeal and remanded the case to the trial court. Second appeal before the Board of Revenue was filed by Mana alone against the order of the R. A. A. On 1-5-70 a compromise application was filed by the advocate for the appellant which bore thumb impressions and photos of Dhanna & Veerma respondents which was attested by the Dy. Registrar, Board of Revenue the same day. Although he (Shri S. N. Pareek) was attorney for both Dhanna & Veerma which was never withdrawn, another power of attorney was presented in favour of Shri Sayarchand on 1-570 who identified the respondents Dhanna & Veerma. The learned counsel argued that he had no instructions from them for compromise. The counsel for the respondent contended that since Dhanna died on 21-9-70 and no application for substituting his legal representatives was brought within 90 days which was mandatory for the appellant to do, the appeal automatically abated on 21-12-70. He drew our attention to the fact that although the compromise was attested by the Dy. Registrar, no orders were passed by the Bench on this compromise. It was, therefore, argued that the second stage of passing the decree having not been acted upon, the court became functus officio to give effect to it after abatement. He stated that Dhanna's position even if compromise was accepted and decreed by the court would have been that of a proforma respondent and failure to bring a proforma respondent in a joint suit abates the appeal in its entirety. He cited A. I. R. 1963 S. G. 1901 in support of his contention. The learned counsel for the appellant argued that the terms of compromise were confined to and applicable only to defendants No. 2 & 3 and to no other defendants. As for the ruling A. I R. 1963 S. C. 1901 cited by counsel for the respondents, he contended that facts and circumstances of the case were different from the present one. In that case it was a matter of joint tenancy while in the instant case trespass had been alleged. In the above ruling one of the plaintiffs died while in the present case one of the defendants died. In the Supreme Court ruling the application filed by the plaintiff or bringing the legal representatives on record out of limitation was rejected by the court which is not the fact in the present appeal It was further argued that any one of the parties could have preferred an appeal and if any one of them died the appeal would not abate. He, however, stated that under the Supreme Court authority cited above O. 41, Rule 4 of C. P. C. would not apply when the plaintiff died and it was a case of joint tenancy and no application for bringing the L. Rs. was presented within 90 days. He further argued that in the present case one of the defendants died and before his death a compromise was struck which was verified by the Board and in that compromise there was admission of the defendants that they were not in possession. Therefore, he concluded, that it was not necessary to bring the legal representatives on record. It was further stated that in the application dated 6-1. 71, the respondents have not challenged the compromise. This has also not been challenged by the legal reprerentatives of Dhanna deceased. He argued that the affidavits of Ratia and Gerki do not have any bearing on the said compromise. He stated that a trespasser's right was not heritable and that in a suit for recovery of possession if any one dies and the legal representatives are not impleaded the suit would not abate. He cited 1956 R. R. D. 126, 1965 R. R. D 366, 1950 Mad. 482 and 1926 Cul. 512 to support his contention that if during the pendency of an appeal if one of the respondents died without his L. Rs. being impleaded the appeal would not abate As for the Supreme Court ruling cited by the respondents, he added that it had been distinguished in 1971 Supreme Court 742. In rejoinder, the counsel for the respondents stated that this decision of Supreme Court did not distinguish but explained the rule laid down. For other rulings cited by the appellant, it was contended that they did not apply to the present case as the facts were different. We now proceed to examine the impact of that citations quoted by the parties in support of their arguments. In A. I. R. 1963 Supreme Court 1901 it has been held that if a party died during the pendency of appeal his legal representatives have to be brought on the record within the period of limitation. In this case a joint tenancy was alleged and during the pendency of the appeal one of the plaintiff appellants died. The application under sec. 5 of the Limitation Act for substituting the legal representatives of the deceased was dismissed by the appellate court. We find that in the Civil Procedure Code separate provisions under O. 22, Rules 3 & 4 have been prescribed. R. 3 relates to cases where one of the plaintiff-appellants dies while R. 4 defines the provision in cases of death of the defendant-respondent. The instant case is of the death of defendant-respondent. The rule laid down in 1963 S. C. 1901 will not, therefore, apply to this case. In R. R. D. 1956 page 126, it was held by a D B. of this Board that in a suit for recovery of possession where all the three defendants were Co-trespassers (as they were alleged to have taken wrongful possession of the land) although one of them had died and his heirs were not brought on record during the pendency of the suit it was possible to pass a decree against the trespassers who were before the court. The case reported in R. R. D. 1965 page 366 relates to the provisions of O. 22, R. 4 of the C. P. C. It that case the defendant-respondents were not in possession of the suit land. It was, therefore, observed by the D B. that an effective decree could be passed against the remaining defendants and the contingency of inconsistent decrees would not arise because of the abatement of the appeal against one of the defendants Chotia. The learned D B. also took into consideration the rule laid down in A. I. R 1959 Rajasthan 17. (This has been also cited in this case. In this case before the Rajasthan High Court, the facts were that a suit for the recovery of possession was brought against father and son as joint trespassers. The father died during the pendency of the appeal leaving behind his six sons of whom only one was on the record. An application to bring the other sons on record was dismissed as it was belated. The sons were in joint possession of all the immovable property though they were living and messing separately and the son who was already impleaded as a defendant was not the eldest son. In these circumstances, it was held that the appeal abated as a whole because the son who was impleaded as a defendant could not be deemed to be substantially or sufficiently representing the estate of the deceased. In A. I R. 1971 Supreme Court 742 cited by counsel for appellant, it was held, that the fact that a person jointly interested in the decree had been made a party respondent and on his death his heirs had not been brought on record, does not per se divest the appellate court of its jurisdiction to pass the decree in appeal. In this case A. I. R. 1963 page 1901 was distinguished. In A. I. R. 1926 Calcutta 512 it was held that the omission by an appellant to implead as a respondent or to substitute the legal representatives of a deceased party who was not interested in the result of the appeal did not affect the maintainability of the appeal. The point for determination in the first instance before us is whether this court could give effect to the compromise presented on 1-5-70 when the appeal had abated on 21-12-70 as contended by the counsel for the respondent. We find that a compromise duly verified by the Dy. Registrar. Board of Revenue is available on the file. The argument of the learned counsel for the respondent that he had no instructions from the party for this compromise and another counsel Sayar Chand was engaged has no force. The party could engage any other lawyer for conducting his case in addition to the counsel already engaged. There is no doubt that on this compromise final orders of the Bench were not passed. The fact remains that two adjournments were given at the request of the parties and the case, therefore, did not come up for passing any orders on this compromise. It was on 6-1-71 that an application regarding the death of Dhanna was presented by the counsel for the respondent. Formal decree in terms of compromise could, therefore, not be passed by the Bench. This compromise will, therefore, not be treated as an order of the court. The second question before us is about the effect of O. 22, Rule 4, C. P. C on this case. This fact is admitted by both the parties that Dhanna respondent died on 21-9-70 and no application for bringing his legal representatives was filed before the Board within the period of limitation. The test to see whether the suit or appeal abates as a whole or only in part is to find out if the suit could, in the first instance, have been instituted and prosecuted with the deceased defendant left out. In other words, if separate suits are maintainable against the defendants severally, then the abatement will be only in part inspite of the other defendants having been impleaded in the same suit. Where the absence of the legal representatives of the deceased from the record renders it impossible to proceed with the suit or appeal as against the rest, the suit or appeal will fail in toto. Such impossibility may arise from the suit or appeal becoming imperfectly constituted for want of necessary or essential parties or from the fact that the plaintiff or the appellant could not have brought the action against the remaining defendants or respondents alone or from the undesirable possibility of having two inconsistent or contradictory decrees in one and the same suit or from the futility of proceeding further in a matter in which the decree, if given, cannot be effectually executed by reason of the outstanding right of the legal representatives of the deceased. In an appeal the nature of abatement will have to be decided not upon the nature of the relief involved in the suit but upon the nature of the relief awarded by the decree appealed against. Thus, if the decree awarded joint possession, the abatement will affect the appeal in its entirety even though the plaintiff had asked for separate possession in the plaint.
(3.) ON the above principles, we now examine the pleadings of the parties. A suit under sec. 183 of the Rajasthan Tenancy Act was filed by the appellant against six defendants including deceased Dhanna. In the prayer it was stated that the possession over Khasra numbers 234 & 237 may be got restored from the defendants In para 5g of the plaint it was specifically mentioned that defendants No. 1 to 3 (Gordhan, Dhanna & Veerma) have dispossessed the plaintiffs. The decree of the trial court in clear terms states that the plaintiffs shall be given possession by ejecting the defendants who were the trespassers. This decree, therefore, is joint and indivisible. In view of the above principle and mandatory provisions of law and admitted facts by the parties, we hold that the legal representatives having not been brought on record within 90 days, the appeal stands abated in toto as the decree awarded by the trial court was for joint possession and otherwise it would result in two inconsistent decrees. The result of the aforesaid discussion is that the application dated 6-1-71 is accepted and the appeal abates. .;