JUDGMENT
Madan Mohan Prasad, J.
1. In
this appeal, a preliminary objection has been taken to the effect that the appeal has become incompetent in view of the same having been dismissed as against some of the respondents.
2. The appeal is directed against a decree dismissing a suit for partition. The short facts relevant for the present purpose are as follows. The plaintiffs filed a genealogy, according to which one Kanhai had three sons, namely. Gangeshwari, Bisesari and Parmeshwari. Gangeshwari died issueless before the survey. Bisesari and his son Jagan also died before survey. The latter, however, left two sons Sahdeo and Mahadeo. Sahdeo also died long, before the suit, and his sons were impleaded as defendants 11 to 14 and 18. His brother Mahadeo was impleaded as defendant No. 8 and his sons were impleaded as defendants 9 and 10. It will be relevant to mention that one of the sons of Sahdeo was Dukharan (defendant No. 11) and his minor son, Rajkapur. was impleaded as defendant No. 27 and as respondent No. 26 to the present appeal. Similarly, another son of Sahdeo named Thakur was impleaded as defendant No. 1,8 and his minor son, whose name was not known, was impleaded as defendant No. 29 and as respondent No. 28 in this appeal. In the branch of Parmeshwari, he had three sons, Gopi, Lalchand and Jagmohan. Gopi’s son and grandson were impleaded as defendants 1 and 2 respectively, and Lalchand’s son and grandsons as defendants 3 to 7. It needs to be pointed out that one of the sons of Lalchand named Rambaran had a minor son, name not known, who was impleaded as defendant No. 28 and as respondent No. 27. The sons and grandsons of Jagmohan are the plaintiffs.
3. The case of the plaintiffs is that the family had 8.35 acres of land in village Shahpore (mentioned in Schedule No. 1) and 75 decimals of land in village Aurangabad (mentioned in Schedule No. II). In the record of survey, Sahdeo and Mahadeo were recorded in respect of 1/3rd share, Lalchand in respect of another l/3rd and Parmeshwari in respect of the remaining l/3rd. According to them, Lalchand had separated from his father Parmeshwari and for that reason he was separately recorded in respect of 1/3rd share. At the stage of evidence, the explanation given for the share of Lal
chand, as stated above, was that he had taken more lands than he was entitled to according to his share in Schedule I lands in lieu of having given up his share in Schedule II lands. On this basis, the plaintiffs said that they were entitled to 1/6th share in Schedule I lends, defendants 1 and 2 to 1/ftth share, defendants 8 to 14 (Mahadeo, his sons and heirs of Sahdeo) to l/3rd and Lalchand to the remaining 1/3rd in view of what has been stated above. According to the plaintiffs, they were further entitled to half share in Schedule II lands, Lalchand getting no share therein on account at’ his having become separate from his father and the other half being that of defendants 1 and 2. The case of the plaintiffs in respect of Schedule II lands was that they were the separate properties of Parmeshwari and the other branches had nothing to do with them.
4. Defendants 1 and 2 filed a
written statement supporting the case of the plaintiffs. Defendants Nos. 3 to 7 however, contested the allegations of the plaintiffs, and some other defendants by their written statements supported his case. The case of these defendants was that the three sons of Kanhai had separated and were only tenants-in-common at the time of survey. Gangeshwari had, therefore, sold his share in Schedule I lands to Lalchand and that was the reason why Lalchand was recorded in respect thereof in survey papers. They denied the allegation of separation between Lalchand and his father. Further, they alleged that the lands of Schedule I had already been partitioned earlier, and the land so allotted to defendant No. 3 is stated in the Schedule to the written statement filed by him. With regard to Schedule II lends, their case was that 42 decimals out of that along with some other lands of Schedule I had been sold by Lalchand to one Bakhori and 25 decimals of Schedule II lands had been sold by him to his cousins, Mahadeo and Sahdeo. Bakhori, in his turn, sold away 42 decimals of land to Surji (defendant No. 20), the daughter of Lalchand, and the lands of Schedule I had reverted to the possession of Parmeshwari and Bisesari. After the death of Parmeshwari, his three sons had come in possession of the properties. The remaining portion of 8 decimals in Schedule II lands was allotted to the father of the plaintiffs. Accordingly, these, defendants claimed a share in Schedule II lands as well.
5. The learned Subordinate Judge found in favour of these defendants and dismissed the suit on the grounds that the plaintiffs had failed to prove that Lalchand was separate, that Lalchand had purchased 1/3rd share of Gangeshwari,
that there had been a previous partition of Schedule I lands and that the portion of Schedule II lands having been transferred and the suit having been framed as a suit for partition simpliciter was not maintainable. Hence the present appeal.
6. It appears that by an order dated the 26th October, 1967 this Court had ordered respondents 26, 27 and 28 along with other minor respondents to be placed under the guardianship of the Deputy Registrar. By another order dated the 22nd November, 1967., one month’s time was granted to deposit the guardian’s cost for the aforesaid respondents, failing which the appeal was to stand dismissed as against them. The order was not complied with. Accordingly, the appeal stood dismissed on the 22nd December, 1967, as against them. It appears that an application for restoration of the appeal as against the aforesaid respondents, being M. J. C. No. 121 of 1968, was filed. It appears next that for non-compliance of the order passed in that proceeding on the 12th of April, 1971 granting one week’s time to take steps for service of notice on the opposite parties, the M. J. C. application also stood dismissed for default on the 19th April, 1971. The position thus in respect of respondents 26 to 28 did not improve, and the appeal stood dismissed as against them.
7. It also appears that respondent No. 23 Bhagwan Sao (defendant No. 24) son of Bekora Sao also died during the pendency of the appeal, and by an order dated the 24th September, 1968, it was ordered by this Court that the appeal had abated as against the heirs of the said respondent No. 23. On the prayer of the appellants, it appears an order was passed on the 24th October, 1968, expunging the names of respondents 21 to 24 at the risk of the appellants.
8. It has now been pointed out by the respondents that the appeal having been dismissed against respondents 26 to 28, it cannot now proceed in respect of the remaining respondents, having become incompetent for several reasons; primarily, that there is a likelihood of a conflicting decree being passed. On the other hand, it has been contended on behalf of the appellants that the suit being one for partition and the heads of the different branches being still parties, the appeal can proceed and the Court should adjudicate upon the question irrespective of the fact that the decree stands in favour of the aforesaid respondents who, it is said, were not necessary parties. For the reasons which I shall state hereafter, the contention of the respondents must prevail.
9. There is no doubt, nor has it been disputed by the appellants, that if the appeal is heard further, there is likelihood of a decree conflicting to the one already enuring to the advantage of respondents 26 to 28. If the appeal be allowed after hearing, obviously the findings already given by the learned Subordinate judge, as mentioned above would
be disturbed. If it be found that Lalchand had not acquired l/3rd share from Gangeshwari and that it was a part of the joint family property, obviously the decree would stand reversed not only in respect of the respondents who are present parties to the appeal but even as against respondents 26 to 2.8 and that will have the effect of taking away from them what they have already got by virtue of the dismissal of the appeal against them. If the findings in respect of the previous partition of Schedule I lands were to be disturbed, they will not only affect the present respondents but even respondents 26 to 28. So also with regard to Schedule II lands. The suit has been held to be non-maintainable, and, if that finding were to be disturbed again what benefit respondents 26 to 28 have derived will have been lost. It has also been held by the court below that Lalchand had a share in it and thus respondent No. 27, his grandson, against whom the appeal has been dismissed has secured a benefit which is likely to be lost by reversal of that finding of the Subordinate Judge. It is not necessary to dilate upon this point at any length. It is quite obvious that in the circumstances of the present case, a reversal of the decree of the court below will enure to the prejudice of the respondents against whom, the decree has already been upheld by virtue of the dismissal of the appeal.
10. The question, thus, is whether the consideration of a conflicting decree likely to be passed can be ignored. The argument of learned counsel for the appellants is exactly that. In spite of his best efforts, he has not been able to cite any authority in support of his argument to the effect that even though the appeal has been dismissed against some of the respondents and the decree has been upheld, the appeal can be proceeded with and a contradictory decree passed in the same appeal simply because the persons who are not now before the Court were at the initial stage not necessary parties. Learned counsel has drawn our attention to the provisions of Order 1, Rule 9 of the. Code of Civil Procedure (hereinafter called ‘the Code’) which reads thus :
“No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit
deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.”
It is obvious that a suit is not to be defeated by reason of non-joinder or mis-joinder and the Court may deal with the matter in controversy; but it has to be noticed that the wordings in the rule are that this must be only in “so far as regards the rights and interests of the parties actually before it.” It is, thus, obvious that it is not the rights “and interests of the respondents who are no more parties to this appeal which can be adjudicated upon In their absence and in spite of a decree already having been passed in their favour. In this connection, I would refer to the case of State of Punjab v. Nathu Ram (AIR 1962 S.C 89), wherein (in paragraph No. 5 at page 90), Raghubar Dayal. J. speaking for the Court while considering the aforesaid rule, observed as follows :
“It follows, therefore, that if the Court can deal with the matter in controversy so far as regards the rights and interests of the appellant and the respondents other than the deceased respondent, it has to proceed with the appeal and decide it. It is only when it is not possible for the Court to deal with such matters, that it will have to refuse to proceed further with the appeal and therefore dismiss it.”
In that case, there was a joint decree in favour of two persons, and during the pendency of the appeal, one of them was dead and his legal representatives were not brought on record and the appeal had abated as against him. The question was whether the appeal had abated against the other respondent as well. I am tempted to quote further from the aforesaid decision in order to show that when the success of the appeal may lead to the Court’s coming to a decision which would be in conflict with the decision between the appellant and the deceased respondent and thus a contradictory decree with regard to the same subject-matter, the Court would not proceed with the appeal :
“The question whether a Court can deal with such matters or not, will depend on the facts of each case and therefore no exhaustive statement can be made about the circumstances when this is possible or is not possible. It may, however, be stated that ordinarily the considerations which weigh with the Court in deciding upon this question are whether the appeal between the appellants and the respondents other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the
controversy before the Court. The test to determine this has been described in diverse forms. Courts will not proceed with an appeal fa) when the success of the appeal may lead to the Court’s coming to a decision which be in conflict with the decision between the appellant and the deceased respondent and therefore which would, lead to the Court’s 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.”
11. It is, thus, well settled that the Court would refuse to proceed with the appeal in case there is likelihood of conflicting decree. Learned counsel for the appellants has, however, urged that all the three circumstances mentioned in the aforesaid observation of the learned Judge of the Supreme Court must be present in order that the Court may refuse to proceed with the appeal. The argument has merely to be stated in order to be rejected. The circumstances of different cases may differ, and any one or more of the tests laid down have to be applied. I am definitely of the view that even if one of the tests is applicable, the Court must refuse to proceed with the appeal. Learned counsel for the respondents pointed out, in support of the aforesaid proposition, what has been said in the decision of Sri Chand v. Jasdish Pershad Kishan Chand, (AIR 1966 SC 14.27). In that case, while affirming the principle laid down in the case of AIR 1962 SC 89 (supra) Shah, J. speaking for the Court, said :
“It may be pointed out that the three tests suggested by Raghubar Dayal. J., in Nathu Ram’s case [(1962) 2 SCR 636 = (AIR 1962 SC 89)] are not cumulative tests. Even if one of them is satisfied, the Court may, having regard to all the circumstances hold that the appeal has abated in its entirety.”
The argument of the learned counsel for the appellants to that effect must, therefore, be rejected.
12. Learned counsel for the appellants has next contended that in view of Order 41, Rule 4 of the Code, it is open to him to obtain a reversal of the whole decree since it ‘proceeds on grounds common to the case of the minor respondents against whom the appeal stands dismissed and the remaining respondents. I will read here the rule aforesaid which runs as follows :
“Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree and thereupon the appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be.”
The effect of this rule has been considered in several cases. I will first refer to a decision of our own Court in Ramphal Sahu v. Babu Satdeo Jha (AIR 1940 Pat 346). A Full Bench of this Court held that there is nothing in Order 41, Rule 4 of the Code which permits the Court to disturb the finality of the decree, already passed. It was said that the rule was intended to apply to cases where all the plaintiffs or the defendants were alive and that only one or more of such plaintiffs or defendants had appealed from the decree. The wording of the rule was held not appropriate to cases where one of the plaintiffs or defendants-appellants was dead during the pendency of the appeal. It was, therefore, held that the appellate Court had no power to proceed with the hearing of an appeal and to reverse or vary the decree in favour of all the plaintiffs or defendants under Order 41, Rule 4, if all the plaintiffs or defendants appeal from the decree and one of them dies and no substitution is effected within time and the application for setting aside the abatement, so far as the deceased appellant is concerned, has been refused. This decision was noticed and approved by the Supreme Court in the case of Rameshwar Prasad v. Shambehari Lal (AIR 1963 SC 1901). In that case also, their Lordships held that where a number of persons have filed an appeal and pending the appeal one of the appellants dies, the surviving appellants cannot be said to have filed the appeal as representing the deceased appellant, and, if in respect of the appellant deceased the appeal has abated and the decree in favour of the respondents has become final against his legal representatives, these not having been brought on record in time, it will be against the scheme of the Code to hold that Rule 4 of Order 41 empowers the Court to pass a decree in favour of the legal representatives of the deceased appellant on hearing an appeal by the surviving appellants even though the decree against him has become final. Reliance was also placed on the decision in Nathu Ram’s case, AIR 1962 SC 89 (supra). It must be noted that Rule 4 of Order 41 enables one of the plaintiffs or defendants to file an appeal in ease the
grounds are common to all the plaintiffs or defendants. Where all the plaintiffs and defendants have appealed, there is no question of applying this rule.
13. Learned counsel for the appellants has drawn our attention to a few other decisions of the Supreme Court which I shall presently notice. The first one is in the case of Mahabir Prasad v. Jage Ram, (AIR 1971 SC 742). Their Lordships distinguished the case from the case of Rameshwar Prasad (supra) on tacts and followed an earlier decision of that Court in the case of Ratan Lal Shah v. Firm Lalmandas Chhadamma Lal (AIR 1970 SC 108). In the case before the learned Judges, it was pointed out that there was an order against the decree-holder, but all the decree-holders had not appealed. Only one of them had appealed, and the other two were joined as party respondents. In Ratan Lal Shah’s case, the Court had allowed the appeal to e (prosecuted even though one of the joint decree-holders impleaded as a party-respondent had not been served with the notice of appeal. The principle laid down in Rameshwar Prasad’s case was, therefore, found to be inapplicable to the facts of the case before the learned Judges deciding the case of Mahabir Prasad (supra). Shah. C. J. said :
“Power of the appellate Court under Order 41, Rule 4 to vary or modify the decree of a Subordinate Court arises when one of the persons out of many against whom a decree or an order had been made on a ground which was common to him and others has appealed. That power may be exercised when other persons who were parties to the proceeding before the Subordinate Court and against whom a decree proceeded on a ground which was common to the appellant and to those other persons are either not impleaded as parties to the appeal or are impleaded as respondents.”
14. It is not necessary for us to dilate upon the point. These decisions are upon the facts, distinguishable from the instant case before us. The present one is not a case where Order 41, Rule 4 has any application. In the cases aforesaid, the questions were different. In the case before us, the question is whether the decree having already been confirmed on account of dismissal of the present appeal as against respondents 26 to 28 it is now open to this Court to proceed to hear the appeal and vary or reverse the decree in favour of the appellants and against all the respondents. In my view, the principle laid down by the Supreme Court in Nathu Ram’s case (supra) and Rameshwar’s case, AIR 1963 SC 1901 (supra) applies and not those laid down
in the case of Ratan Lal, AIR 1970 SC 108 or Mahabir Prasad, AIR 1971 SC 742 (supra) cited by learned counsel for the appellants.
15. Learned counsel for the respondents has drawn our attention to several other decisions of our Court in Dhanuka Singh v. Saudagar Singh (AIR 1955 Pat 240), Janak Sahu v. Anant Jha, (AIR 19&3 Pat a), Deo Narain Singh v. Bibi Khatoon (AIR 1949 Pat 401) and Prahlad Das v. Dasarathi Satpathi. (AIR 1940 Pat 117). The question in most of these cases was whether the whole appeal had abated in view of its abatement in respect of some of the respondents, and, as I have said earlier, the question before us is not whether the appeal has ‘abated’ as a whole, but the question is whether the appeal is now competent and can be heard in view of the existence of a decree already enuring to the benefit of defendants-respondents 26 to 28. It will not, therefore, be necessary to refer to these cases at any length.
16. In view of my finding that there is a likelihood of a decree being passed which would be in conflict with the decree already passed in favour of respondents 26 to 28 and this being not open to us to do, the present appeal must be held to be incompetent. The appeal is accordingly, dismissed. In the circumstances, there will be no order for costs.
S.K. Choudhuri, J.
17. I agree