JUDGMENT
M.K. Kumar, J.
1. This is plaintiffs second appeal directed against the judgment and decree passed by the Additional District Judge, Ourgaon on 4.2.1980. The learned Addl. District Judge partially modified the judgment and decree dated 30.11.1978 passed by the learned Senior Sub Judge, Gurgaon.
2. The case set up by the plaintiff-appellants (for brevity ‘the plaintiffs’) before the trial Court is that they were owners of l/4th share of agricultural land measuring 88 bighas 8 biswas bearing Khewat No. 92 Khatauni numbers 201 to 210 situated in the revenue estate of village Sakatpur, Tehsil and District Gurgaon. The afore-mentioned land at one stage was shown to be evacuee property and the plaintiffs were restored the aforementioned land in pursuance to an order passed on 11.7.1950 by the Deputy Custodian, Gurgaon under Section 16 of the Administration of Evacuee Property Act, 1950 and the revenue Patwari was directed to make necessary corrections in the revenue record. It was claimed that they continue to be owners of the afore-mentioned land. It was further asserted that during consolidation the land bearing Khewat No. 281 Khata No. 320 Rect. No. 39 Killa No. 19/2 (1-5), 21/1 (4-0), Reel. No. 44 killa No. 2/1 (3-12), Rect. No. 49 Killa No. 25/4 (1-10) total 10 Kanals 7 Marias was allotted in lieu of the land comprised in Khatauni Nos.201 to 210. A challenge has been made to the revenue record where defendant-respondent No. 5 (for brevity ‘the defendant’) has been wrongly shown to be owner of the land despite the restoration order and it is claimed that the afore-mentioned defendant No. 5 has no title to the land. It is, therefore, claimed that the plaintiffs are owners and in possession of the above land and are entitled to remain in possession as its owner.
3. On the basis of the allegations that in consolidation proceedings they were allotted substituted land as referred to herein above and hence they are entitled to be the owner and continue in possession of the aforementioned land, it is asserted by the plaintiffs that defendant No. 1 has, without any right, sold the aforementioned substituted land to defendant Nos.2 to 5 by way of registered sale deed dated 27.2.1969 for an ostensible consideration of Rs.3,500/-. In the alternative, the plaintiffs claimed right of pre-emption on the basis that they were tenants of the vendor Smt. Bhagwan Devi, defendant No. 5. Defendant Nos.l to 5 contested the suit and filed their written statement. Various preliminary objections were taken like that l/5th of the sale price of the property was not deposited and the suit for pre-emption cannot proceed in the absence of the requisite deposit of l/5th sale price which is a condition precedent. On merits, it was claimed that there was no order ever passed restoring the land by the Deputy Custodian to the plaintiffs nor any land was allotted to them by the consolidation authorities substituting the old land. On the basis of these assertions, the defendants claimed that suit of the plaintiffs was liable to be dismissed.
4. In so far as the claim of the plaintiffs for claiming pre-emption as tenant against defendant No. 5 Smt. Bhagwan Devi is concerned, it was claimed that the plaintiffs were never her tenants and the land allotted to her was free from all encumbrances.
5. In order to prove their case, the plaintiffs produced Rehmat as PW1 and tendered in evidence documents Ex.P.I to Ex.P.21. Defendants also produced DW1 who is defendant No. 4 and also tendered in evidence document Ex.Dl which is certified copy of the sale deed dated 27.2.1969. Document Ex.Pl is an order passed by the Government of Punjab restoring evacuee land under Section 16 of the Administration of Evacuee Property Ordinance (XXVII of 1949). This order has been passed on 11.7.1950. Ex.P.2 is an order of the Naib Tehsildar-cum-Assistant Collector 2nd Grade. Gurgaon correcting khasra girdawari in respect of the land comprised in Khasra Nos.39, 19/2, 22/1 measuring 8 kanals 17 marlas and while correcting Khasra girdawari for the years 1966 to 1968, the Naib Tehsildar concluded that the plaintiffs were shown to be in cultivating possession of land and passed an order for correction of the revenue record. Copies of the Jamabandi of various years have also been produced on record. The trial Court after considering the overwhelming documentary evidence produced by the plaintiffs decided vital issues in favour of the plaintiffs.
6. Issue No. 1 was whether the plaintiffs are owners of l/4th share of agricultural land and whether the land was restored to them under Section 16 of the Administration of Evacuee Property Ordinance. The trial Court after considering the document Ex.P.1 i.e. the order dated 11.7.1950 passed by the Deputy Custodian restoring the land to the plaintiffs gave its findings as under; “Accordingly, I hold that the plaintiffs are the owners of l/4th share in the land mentioned in para No. l of the plaint, which was restored under Section 16 of the Administration Evacuee Property Act.”
7. Issue No. 2 was concerning the consolidation proceedings and exchange of land i.e. whether the plaintiffs were allotted another piece of land i.e. whether the plaintiffs were allotted another piece of land in lieu of the land originally owned by them during the consolidation proceedings. This issue was also decided in favour of the plaintiffs and it was held that the plaintiffs were allotted the suit land during consolidation in lieu of the earlier land where defendant No. 5 was at one stage shown to be the owner.
8. Certain other issues raised by the defendants like the objection that the Civil Court has no jurisdiction was also decided in favour of the plaintiffs and against the defendants. The issue of locus standi was also decided in favour of the plaintiffs and against the defendants. The same was the fate of the issue concerning estopped and another issue that the pleadings of the plaintiffs were vague or that the Union of India was a necessary party.
9. In so far as the issue with regard to pre-emption money was concerned, it was decided against the plaintiffs.
10. In pursuance of the decision on various issues, a categorical finding was recorded by the trial court that the plaintiffs were in possession of the suit land and they were granted decree for permanent injunction restraining the defendants from interfering in their possession over the land allotted after consolidation. The declaration of the trial Court is in the following words;
“As a result of my findings on the above issues and the fact that the plaintiffs are in possession of the suit land, the plaintiffs are granted a decree for permanent injunction restraining the defendants from interfering in their possession over the land mentioned in para No. 3 of the plaint and situate in the revenue estate of village Sakatpur, Tehsil and District Gurgaon. In the circumstances of the suit, the parties are left to bear their own costs of the suit.” 11. Feeling aggrieved by the judgment and decree passed by the learned trial Court on 30.11.1978, defendant Nos. 1 and 4 challenged the same before the learned Addl. District Judge, Gurgaon. The Learned Addl. District Judge while rejecting the various arguments advanced on behalf of the defendants, affirmed the findings recorded by the trial Court on all the issues in the following terms;
“in the instant case, there is not an iota of evidence to show that the plaintiffs had expressly or impliedly permitted Smt. Bhagwan Devi to represent herself as the owner of the land. At the most it can be said that there was inactivity on the part of the plaintiffs in getting, the record of rights corrected. However, as held in the case of Gurbinder Singh and others (supra), mere inactivity of the true owners, even with the knowledge of the vendor does not amount to implied consent to the vendor to represent himself as owner of the property. This apart there is no cogent evidence to show that the venders had taken reasonable care to ascertain that the vendor had the power to sell the land. Undoubtedly, Smt. Bhagwan Devi was recorded owner of the land and the vendees satisfied themselves to this extent from the revenue record, as has also been stated by Ram Parshad, DW1. However, the vendees did not care to ascertain the rights of the plaintiffs in the land, who were evidently in continuous possession of the land since long. The plaintiffs were recorded in possession of the land in jamabandi Ex.P.12 for the years, 1962-63 and also in subsequent khasra girdawaris upto Rabi 1965. Petition for correction of Khasra girdawari for the subsequent period was pending between the plaintiffs and Bhagwan Devi. No attempt was made to ascertain the status of the plaintiffs in the said land. There was already the order Ex.P.1 in favour of the plaintiffs and its intimation to the revenue patwaris’ vide entry in the daily diary copy Ex.P. 14. The vendees did not care to enquire from the revenue authorities about the title of the plaintiffs, if any, in the land and even to thoroughly search the revenue record. Ram Parshad defendant according to his own statement was hardly 15 years old when the land was purchased. He was thus obviously incapable of making searching enquiries regarding the title of the plaintiffs in the land. Hence, it cannot be said that the Smt. Bhagwan Devi was competent to sell the land. Mr. M.L. Gupta cited Mahammad Din and Ors. v. Mt. Sardar Bibi and Ors., A.I.R. 1927 Lahore 666. In that case it was held that the purchase of the land, on the basis of satisfaction derived from the revenue record that the seller is entered as owner therein, is sufficient to show that the vendees have made bona fide enquiries about the title of the vendor. Mr. M.L. Gupta also relied on the case of Arur Singh etc. (Supra), wherein the transfer by mortgagor/owner was held to be valid as against the mortgage who had not got himself recorded as such in the revenue record. None of these cases is applicable to the facts of in the present case because in the above authorities relied upon by the appellants, counsel, the vendors were in possession of the land, while in the instant case, the vendor Smt. Bhagwan Devi was not in possession of the land which remained throughout in possession of the plaintiffs. In view of the plaintiffs’s possession the perspective vendees were supposed to make further enquiries about the title of Smt. Bhagwan Devi from the revenue record. Defendant No. 2 to 5 are thus not bona fide purchasers. The finding under issue No. 9 recorded by the learned trial Court is hereby affirmed. No other point has been urged. For the reasons recorded above, there is no merit in this appeal, However, the decree framed by the learned trial Court nevertheless needs to be modified as the rights to the extent of 3/4 share in the land of the appellants have to be protected. The plaintiffs are only owners of 1/4th share in the land. Hence, I partly accept this appeal. The decree under appeal dated 30.11.1978 is hereby set aside. A decree for perpetual injunction is hereby passed in favour of the plaintiffs against the defendants, restraining the defendants from interfering in the possession of the plaintiffs over the land detailed in para 3 of to plaint, situated in village Sakatpur, Tehsil and Distt. Gurgaon, except in due course of law. It is further clarified that the vendees i.e. the appellants shall be entitled to get the possession of their share in the suit land in accordance with law.”
Aggrieved by the order of the Additional District Judge, the plaintiffs have preferred the present appeal.
12. I have heard Sh. V.K. Jain, learned Senior counsel for the plaintiffs and Sh. Sanjay Majithia, learned counsel for the defendants and have with their assistance perused the record alongwith the exhibits and statement of witnesses.
13. Sh. Majithia drew my attention to the order passed by this Court on 23.8.1990 in Civil Misc. Nos. 647 and 648-C of 1990 and argued that this Court had while dismissing the application of Ismail for impleading of legal representative of Ismail who had died on 5.9.1981, observed that there was no ground for setting aside abatement and that application was filed after about eight years of the death of Ismail. Therefore, according to the learned counsel the whole appeal has abated and right to sue does survive within the meaning of Order XXII Rule 3 of the Code of Civil Procedure, 1908 (for brevity ‘the Code’). It is appropriate to mention that vide my separate order passed today in civil Misc. N0.7I39-C of 2001, I had allowed the application for impleadment of legal representatives of Rehmat and the contention of the learned counsel has to be examined in view of the order allowing, the application for impleadment of legal representatives. According to the learned counsel, the question for consideration before this Court would be whether the right to sue survives to legal representatives of Rehmat because of the death of Ismail and Rehmat as the other appellant were represented through Ismail except Rehmat. Therefore, it is required to be determined whether the appeal on behalf of the legal representatives of Rehmat would survive or would be abated.
14. Sh. V.K. Jain has argued that under Order XXII Rule 3 of the Code, the right to sue survives within the meaning of Order XXII Rule 2 of the Code. He submitted that the plaintiffs are co-owners and one co-owner can always file a suit for permanent injunction even if no other co-owner has joined as plaintiff. According to Sh. Jain, the right to seek relief by one co-owner cannot be defeated as co-owner is representing every part of the joint property and the whole estate is represented. The provisions of Order XXII Rule 2 of the Code read as under:
“Procedure where one of several plaintiffs or defendants dies and right to sue survives – Where there are more plaintiffs or defendants than one, and any of them dies and where the right to sue survives to the surviving where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants.”
15 Sh. Jain has relied on two Full Bench judgments of this Court in Bhartu v. Ram Sarup, 1981 PLJ 204 and Ajmer Singh and Ors. v. Shamsher Singh and Ors., 1983 P.L.J. 585, and a Division Bench judgment of this Court in Sant Ram Nagina Ram v. Daya Ram Nagina Ram, A.I.R. 1961 Punjab 528 and a judgment of the Supreme Court in Smt. Gema Coutinho Rodrigues v. Bricio Francisco Pereira and Ors., A.I.R. 1994 S.C. 1199 to argue that if one of the plaintiffs have died, the whole appeal would not abate when one of the legal representatives has been brought on record substantially representing the interests of the deceased plaintiff provided the right to sue survives or vests in that legal representative. Sh. Jain argued that the suit land was in joint ownership of the plaintiffs with others. It is pertinent to mention that the observations of the Full Bench of the Patna High Court in Ram Niranjan Das v. Loknath Mandal,’ A.I.R. 1970 Patna 1 substantially support the argument of the learned counsel for the plaintiffs. The observations of the Full Bench are in the following words.
“……A co-sharer, having an interest in a property, jointly with others, is apparently a person with a better title than a trespasser. Following this principle there is no reason why his suit should not be decreed. It is relevant also to consider in this connection that it is, a well settled principle of law that one of the various co-owners of a property, if in possession, will be deemed to be in possession on behalf of all the co-owners and it is for this reason that his possession in law, therefore, is not regraded as adverse to other co-owners unless there is distinct proof of ouster. In that view of the matter also, the interest of an undivided co-owner or co-share must be taken to cover every inch of land which may be the subject matter of dispute as belonging to the co-owners, and hence is clear that there is no support for Mr. Kailash Rai’s contention either in principle or in authority as to why a co-sharer’s suit cannot be held to be maintainable without impleading other co-sharers, and why it should not be decreed in respect of the entire interest of the co-owners which of course, however, will not affect the rights of other co-owners vis-a-vis successful plaintiff in a suit against a trespasser.”
The views expressed by the Full Bench in Ram Niranjan Das’s (supra) have been followed by the Full Bench of this Court in Ajmer Singh ‘s case (supra) on which reliance has been placed by the learned counsel for the plaintiffs.
16. The other judgments cited by the learned counsel for the plaintiffs also substantially support his submissions. Therefore, on the question whether the right to sue survives to the surviving plaintiffs and his legal heirs is concluded in favour of the plaintiffs because once it is found that the surviving plaintiffs and legal representatives are the joint owners then they represent every part of the estate not only to the extent of their own share but even in respect of the share held by the other co-owners.
17. Learned counsel relied on the judgment of the Supreme Court in the cases of Collector of 24 Parganas and Ors. v. Lalith Mohan Mullick and Ors., A.I.R. 1988 S.C. 2121 to argue that as long as the estate of the deceased plaintiffs is sufficiently represented then the plea that the appeal had abated would be untenable. Rejecting this contention, their Lordships of the Supreme Court observed as under;
“The Review Petition has been instituted on the plea that ortginal respondent No. 2 Smt. Sibadasi Mullick, widow of Sh. Krishna Mohan Mullick had died during the pendency of the appeal in this Court and that original respondent No. 5 Smt. Kamalini Mullick, widow of Sh. Khirode Mohan Mullick had also died during the pendency of the appeal in this Court which was disposed of on merits by a Judgment and order dated February 13, 1986 (reported in A.I.R. 1986 S.C. 622) after hearing the parties. So far as Smt. Sibadasi Mullick, widow of Sh. Krishna Mohan Mullick is concerned, her two sons viz. Lakshmi Kanto Mullick and Nikanto Mullick were already on record as respondent Nos. 3 and 4. Therefore, the estate of the deceased was sufficiently represented before this Court. So far as respondent No. 5 Smt. Kamalini Mullick, widow of Sh. Khirode Mohan Mullick is concerned, here son Ramendra Mullick was already on record as respondent No. 6. In her case also the estate was sufficiently represented. Under the circumstances it is not possible to uphold the plea that the appeal had abated and the judgment on merits rendered by this Court on February 13, 1986 requires to be set aside on this ground.”
18. On the other hand, in reply, Sh. Majithia, learned counsel for the defendant could not controvert the argument of Sh. V.K. Jain but reiterated that once this court has passed an order on 23.8.1990 dismissing the application of Ismail for impleadment of his legal representatives observing that there was no ground for setting aside the abatement, the appeal does not survive for the other plaintiffs or their legal representatives.
19. I have given serious consideration to the arguments of the learned counsel for the parties and in view of the law laid down by the Supreme Court in the case of Lalith Mohan Mullick’s case (supra) and in the case of Gema Countinho Rodrigue’s case (supra) and in various judgments of this Court, I do not think that the contention raised on behalf of the defendants is sustainable and the same is liable to be rejected. It is abundantly clear from the various judgments cited by the learned counsel for the plaintiffs that the right to sue would survive for the simple reason that despite the fact the application of Ismail has been dismissed and Hashmat had died during the pendency of the suit, the application of Rehmat has been allowed for impleadment of his legal representatives. Once the land is in joint ownership of the plaintiff Rehmat or his legal representatives then the legal representatives would also be entitled to be the owner of every part of the land, therefore, the right to sue would survive to the legal representatives of Rehmat if none else.
20. Another contention raised by Sh. Jain is that the learned appellate Court commit
ted a grave’error on facts in modifying the decree and confining it to 1/4th share of the
land described in para 3 of the plaint. According to the learned counsel in para 3 the
whole share of the land i.e. 1/4th share of the total land described in para 1 of the
plaint has been referred. In other words, the lower appellate court has committed a grave
error on facts by further diving 1/4th share in 1/4th. Therefore, this modification of the
decree could not have been made and the decree of the trial Court deserves to be re
stored.
21. On this aspect also there is hardly any opposition because it appears to be an er
ror apparent on the face of record which has occurred because of oversight of the appel
lant Court. Therefore, I am of the considered view, that the decree passed by the trial
court in this case deserves to be restored as the land described in para 3 of the plaint
represents 1/4th share of the plaintiffs. For the reasons above, this appeal is allowed and
the modification ordered by the lower appellate Court in the decree of the trial Court is
set aside. The decree of the trial Court is restored. However, in the facts and circum
stances of the case, I leave the parties to bear their own costs.
