JUDGMENT
G.G. Sohani, J.
1. This is defendant’s second appeal arising out of a suit for declaration of the plaintiffs title to the suit land and for grant of permanent injunction restraining the defendants from interfering with the plaintiffs possession over the suit land. The plaintiffs’ case, in brief, was that the plaintiffs and the defendants were members of a Joint Hindu family; that 54 years ago, a partition had taken place in the joint family of the plaintiffs and the defendants, as a result of which the plaintiffs came into possession of their respective portions of the suit property, which had fallen to their share and that the plaintiffs were since then in occupation of their portions of the suit property as owners. The plaintiffs further averred that as the defendants were trying to interfere with the possession of the plaintiffs over the suit land, they had instituted the suit against the defendants for declaration of their title and for grant of injunction. The suit was resisted by the defendants inter alia on the ground that no partition had taken place in the family, as alleged by the plaintiffs and that the possession of the plaintiffs over the suit land was only permissive. The trial Court held that the suit land, being ‘Inam’ land, could not have been partitioned, that no partition of the suit
property had taken place and in this view of the matter, the trial Court dismissed the plaintiffs’ suit On appeal, the lower appellate Court held that a partition was effected as alleged, that the said partition was acted upon and that the plaintiffs had been in possession of their respective shares of the suit land on the basis of that partition for more than 50 years. The lower appellate Court, therefore, held that the plaintiffs, having been in possession of their shares of the suit property for more than 12 years to the exclusion of the defendants, had perfected their title to the suit property by adverse possession even if partition was not valid. In this view of the matter, the lower appellate Court allowed the appeal and setting aside the judgment and decree passed by the trial Court, decreed the plaintiffs’ suit Hence the defendants have fifed this second appeal.
2. During the pendency of the appeal appellant 3, Radhibai and respondent 1 Padamsingn died and their legal representatives were not brought on record A preliminary objection was, therefore, raised that the appeal had abated.
3. Shri Mehta, learned counsel for the appellants, contended that some of the legal representatives of appellant 3 Radhibai were her sons, appellants 1 Ratansingh and 2 Ramsingh, who were already on record, and hence failure to implead other legal representatives, of appellant 3 Radhibai would not result in abatement of the appeal It was further contended that failure to bring on record the legal representatives of deceased respondent 1 would not result in the abatement of the appeal as a whole. The learned counsel for the appellant further contended that there was no evidence to prove that the plaintiff were in possession of the suit land to the exclusion of the defendants. It was urged that there was no ouster of the defendants and hence, the lower appellate Court had erred in holding that the plaintiffs had perfected then title by adverse possession. In reply, the learned counsel for the respondents contended that a valid partition between the parties had taken place and that the plaintiffs had been in exclusive possession of their share of the suit property since the date of partition.
4. As regards abatement of the appeal it was not disputed that some of the legal representatives of appellant 3 Radhibai were
already on record. I may usefully refer to the following observations of the Supreme Court in Mahabir Prasad v. Jage Ram AIR 1971 SC
742 (at p. 744) :
“Even on the alternative ground that Mahabir Prasad being one of the heirs of Saroj Devi, there can be no abatement merely because no formal application for showing Mahabir Prasad as an heir and legal representative of Saroj Devi was made. Where in a proceeding, a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on the record, as an heir and legal representative. Even if there are other heirs and legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act, the proceeding will not abate.”
In view of the aforesaid decision of the Supreme Court, it cannot be held that failure to bring on record all the legal representatives of deceased-appellant 3 would result in abatement of the appeal.
5. So far as failure to bring on record the legal representatives of deceased-respondent 1 is concerned, it was not disputed that the appeal would abate as against respondent 1. The question for consideration is whether the abatement would be partial or total. In Ramagya Prasad Gupta v. Murli Prasad (AIR 19″2 SC 1181), the Supreme Court has observed as follows (Para 16) :
“Under Rule 4(3) r/w Rule 11 of Order XXII, C
P.C., the appeal abates as against the deceased
respondent, where within the time limited by
taw, no application is made to bring his heirs
or legal representat ives on record. As pointed
out by this Court in the State of Punjab v.
Nathu Ram (1962) 2 SCR 636 = AIR 1962 SC
89 it is not correct to say that the appeal
abates against the other respondents. Under
certain circumstances, the appeal may not be
proceeded with and is liable to be dismissed.
But that is so not because of the procedural
I defect but because, as Mulla has pointed out,
it is part of the substantive law. (See Mulla
C.P.C.Vot 1, Thirteenth Edition p. 620 under
note : Non-joinder of Parties). No exhaustive
statement can be made as to the circumstances,
under which an appeal in such cases cannot
proceed. But the Courts, as pointed out in the
above decision, have applied one or the other of three tests. The Courts will not proceed with an appeal (a) when the success of the appeal may lead to the Court’s coming to a decision, which may be in conflict with the decision between the appellant and the deceased respondent and, therefore, it would lead to the Courts passing a decree, which will be contradictory to the decree, which had become final with respect to the same subject matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respondents alone, who are still before the Court and (c) when the decree against the surviving respondents, if the appeal succeeds be ineffective, that is to say, it could not be successfully executed. These three tests, as pointed out by this Court in Sri Chand v. Jagdish Pershad Kishan Chand (1966) 3 SCR 451 = AIR 1966 SC 1427 are not cumulative tests. Even if one of them is satisfied, the Court may dismiss the appeal.”
Now, the lower appellate Court has found that there had been a partition amongst, the members of the joint family of the appellants and the respondents and that the said partition was acted upon. The appellants have assailed this finding. The success of the appeal may lead to the Court’s coming to a decision, which may be in conflict with the decision between the appellants and the deceased respondent. It must, therefore, be held that the appeal has abated as a whole, on account of failure of the appellants to bring on record the legal representatives of deceased-respondent 1.
6. The appeal is, therefore, dismissed as having abated. Parties shall bear their own costs of this appeal.