KANAILAL DHOLEY Vs. KALICHARAN CHATTERJEE

JUDGEMENT

(1.) This is a Letters Patent appeal arising out of a second appeal. The heirs and legal representatives of the defendant No. 1 are the appellants before us.

(2.) The plaintiff-respondent instituted a suit for a declaration that C.S. Khatian No. 164 of mouza Chalk Baidyabati recording a jama of Rs. 91 in respect of the land and the tank in the names of the defendants as tenants under the plaintiff was erroneous and also for a declaration of the plaintiff's khas dakhali title to the said tank and the land in the aforesaid khatian except 0.27 acres of land on the bank of the tank in plot No. 823 which appertained to the defendants' jama of Ra 30. The trial court as well as the lower appellate court found in favour of the plaintiff and accordingly decreed the suit. The courts below also found that the garden and the tank in question had come in khas possession of the plaintiff in the year 1322 B. S. and since then Ambika Dholey possessed the same as an agent of the plaintiff and after the death of Ambika the defendants had been possessing the same as agents of the plaintiff. It was also found that 0.27 acres of land on the bank of the tank in plot No. 823 appertained to the defendants' jama of Rs. 30. Against the decision of the lower appellate court the appellants filed a second appeal to this Court. The second appeal came up for hearing before Chittatosh Mookerji J. who affirmed the decision of the lower appellate court. Against the decision in the said second appeal the appellants obtained leave under Clause 15 of the Letters Patent and they have filed the present appeal.

(3.) Mr. Basu, learned Advocate appearing on behalf of the appellants, has, in the first place, contended that the defendant No. 2 Sudhanya Kumar Dholey died during the pendency of the suit in the trial court but his heirs and legal representatives were not substituted in his place. According to Mr. Basu the entire suit had abated and, therefore, no decree could have been passed in favour of the plaintiff. It appears from the judgment passed in the second appeal that this point was raised for the first time in second appeal before this Court. The appellants did not raise the question of abatement either in the trial Court or in the first appellate court. On the other hand, it appears that after the decree was passed against the defendants although the defendant No. 2 had died before the decree the appellants included the names of the alleged heirs and legal representatives of the defendant No, 2 as respondents Nos. 2 to 7 in the appeal before the first appellate court By an order dated Feb. 24, 1&59 that Court directed the appellants to show cause why the names of the respondents Nos. 2 to 7 should not be expunged, and no cause having been shown, the first appellate court by an order dated 21st March, 1959 expunged the names of the respondents Nos. 2 to 7 from the Memorandum of Appeal. the appellants did not urge before the lower appellate court the question of abatement of the suit on account of the death of the said defendant No. 2. In these circumstances, the trial court or the first appellate court had no occasion to consider the question whether the right to sue did or did not survive against the remaining defendants only. In our view, the learned Judge hearing the second appeal rightly overruled the appellants objection regarding the abatement of the suit as a whole. A similar question arose for decision in P.M.A.M. Vellayan Chetty v. Jothi Mahalinga lyer, ILR 39 Mad 386: (AIR 1916 Mad 574) and it was held that under such circumstances the appellants are precluded from taking up such a point for the first time in appeal on the ground that an unsuccessful litigant has no right to argue the case more than once merely on the ground that the other party to the proceedings had died at the time of hearing. The learned Judges pointed out that Order 22, Rule 4, Clause (iii) provided that if the legal representative of the deceased defendant is not brought on the record within the time limited by law the suit shall abate against such defendant, thereby indicating that the suit could proceed against the other parties on the record. After pointing out other instances whether the suit or the appeal could proceed against the parties on record their Lordships observed: "The object of these various provisions to ensure that no party shall be preidiced by hearing in his absence. No rule of law has been quoted to us which enables a party who has had the 'benefit of full hearing to take advantage of the absence of a party on the record." In the present case although the defendant No. 2 had died the appellants were given full opportunity of hearing before the trial court as well as before the first appellate court, the appellants did not suffer any prejudice on account of the heirs and legal representatives of the defendant No. 2 not having been brought on record. In Dhurm Das Panday v. Mussammat Shama Sundri Dibiah, (1837-1841) 3 Moo Ind App 229 (PC), the judicial committee observed:--