- (1.) THE facts which have given rise to this second appeal by the plaintiff may be stated in brief as below.
(2.) THE plaintiff filed a suit in the court of the Assistant, Collector, Merta against Kushla, Bhimra and Ganesh, respondent defendants with the allegation that the defendants unlawfully took possession of plaintiffs' land on 3. 7. 1952 i. e. Asadh Sudi 11, Svt. 2009, and dispossessed him therefrom. THE plaintiff, therefore, prayed for restoration of possession over the land in dispute and also for a declaration that the defendants had no tenancy rights over the land in question. THE suit was resisted by the respondents on the ground that in Svt. 2005 and 2006 the said land remained uncultivated as there was no water in the well, that in Svt. 2007 the plaintiff himself forcibly cultivated this land, but in Svt. 2008 he willingly allowed the defendants to cultivate it and that they, therefore, rightly took possession of this land as tenants of the plaintiff. THE trial court after framing necessary issues recorded the evidence of the parties and decreed the suit against all the three respondents. An appeal was preferred before the learned Additional Commissioner, Jodhpur, by Kushla and Ganesh only, the third defendant namely Bhima having died during the pendency of the suit before the trial court. THE respondents who were the appellants in the lower court argued that as one of the defendants Bhima had died during the pendency of the suit and as his legal representatives were not brought on record, the decree of the trial court was a nullity as the suit had abated in its entirety. THE first appellate court without going into other questions involved in the case upheld this contention and allow the appeal. Hence this second appeal by the plaintiff. We have heard the learned counsel appearing for the parties and have examined the record of the case. It is urged by the learned counsel for the appellant that even if one of the defendants had died during the pendency of the suit and even though none of his legal representatives was brought on the record the suit could not abate against all as the appellant could get his decree executed against the remaining defendants who were trespassers on the land. In support of this contention he has relied on A. I. R. 1925,patna 434, and A. I R. 1934 Allahabad, 716. In A. I. R 1925,patna,434,it was observed that where a joint decree is passed against several defendants but one of them has died before the passing of the decree, the decree is not a nullity as against all the defendants but fails only as regards the deceased defendant and his heirs. In A. I. R. 1934, Allahabad,716,sulaiman C. J. observed that in a suit for possession and injunction against trespassers the mere fact that one of the trespassers had died and his heirs have not been brought on the record does not make it impossible to pass a decree in favour of the plaintiffs against the trespassers who are before the court. It has been replied by the learned counsel for the opposite party that the suit was brought against the trespassers jointly as the defendants were not in possession of the land in specified shares and, therefore, even if the decree was passed against the two surviving defendants it would be incapable of execution and besides it will result in two contradictory decrees in the same litigation with respect to the same land. He therefore, contends that in order to avoid conflicting decrees the appeal was rightly allowed by the lower appellate court. The rulings cited by him have also been examined. In A. I. R. 1955 Orisa,179,it was laid down that the question where partial abatement leads to an abatement of the appeal in its entirely depends upon general principles of law. These principle reorganised in various decisions are that if the case is of such a nature that the absence of the legal representatives of the deceased respondent prevents the court from hearing the appeal as against the other respondents, then the appeal abates in toto. In that case the plaintiff brought a suit for declaration that a mortgage-deed executed by his father, defendant 9,«n favour of defendants 7 and 8 in respect of ancestral properties was not binding on him and that the auction sale in execution of mortgage decree obtained against defendant 9 without impleading him as a party was also invalid He also prayed for recovery of possession as against defendants 1 to 6 who were in joint possession of the properties by virtue of a subsequent joint purchase from defendants 7 and 8. The suit was dismissed by the trial court and during the pendency of appeal filed by the plaintiff one of the respondents who were joint purchasers of the property died without his legal representatives being brought on record within time with the result that the appeal abated against him. It was held that in the circumstances of the case, the whole appeal abated because if the appeal is proceeded with it would certainly result in two contradictory decrees. In A I. R. 1955, Punjab, 225,on requisition of land belonging to and jointly possessed by two brothers L. and N. a joint application was made for determination of compensation by an arbitrator. The Government being dissatisfied with the awards appealed. On L's death pending appeal his legal representatives were not brought on record. It was held that the Government could have requisitioned any portion of this land without paying the compensation to both the brothers. Since the appeal in so far as it related to L. had abated the rate determined by the arbitrator must hold good so far as his share was concerned. If the appeal of the Government were allowed the compensation payable to N. would be assessed at a lower rate. This means that there would be two contradictory judgments in respect of the same piece of land. Hence the appeal abated in toto. In A. I. R. 1954, Allahabad 436, it was observed that the principle guiding the abatement of an appeal in part or as a whole is that the decision of the appeal should not result in two inconsistent decrees. Where in a suit for joint possession of certain posts of land under sec. 180 of the U. P. Tenancy Act, the shares of different plaintiffs are specified, the mere specification of shares does not alter the nature of the joint decree passed in their favour and the appeal abates as a whole if the appeal against the joint decree passed in their favour has abated against one of the joint decree-holders. In A. I. R. 1954 Nagpur, 279 a suit for ejectment filed by A, B and C was decreed during the pendency of appeal against the decree. A died but his legal representatives were not brought on record. A, B and C had represented three branches of the family. There was no allegation in the plaint that A sued as the manager of the family. Interest of A was not separate from those of the surviving respondents. What interest each of the plaintiff had could not be ascertained from the plaint. It was held that the appeal abated as a whole.
(3.) THE cases cited by the respondent's counsel have no applicability to the present case as the facts are entirely different. THE question involved in the present case is not as regards the abatement of an appeal when the legal representatives of a deceased respondent or the appellant have not been brought on record. THE question to be determined here is as to what should be the effect of a decree passed against three defendants when one of them had died at the time of the passage of the decree and there was an omission to bring his legal representatives on record. The rulings cited by the appellants' counsel provide the answer. In A. I. R. 1925, Patna, 434, all the three defendants were co-trespassers as they were alleged to have taken wrongful possesion of the land. Though one of them had died and his heirs were not brought on record during the pendency of the suit yet it was possible to pass a decree against the trespassers who were before the court. The learned Additional Commissioner has referred to A. I. R. 1956,calcutta, page 587, which is obviously incorrect as the learned Additional Commissioner decided the case in 1955 and 1956 A. I. R. publications were absolutely out of question then. We would, therefore, allow this appeal, set aside the order of the lower appellate court and remand the case back to it with the direction that the appeal filed before it be heard and determined on merits in accordance with la w .;