JUDGMENT
1. Unfortunately for the parties, a suit which was instituted about two decades ago, has not yet come to any final conclusion, and due to one reason or the other, the case got a chequered history. The matter, it seems, unavoidably has to linger further.
2. Five sets of persons joined together in instituting the suit claiming a right of easement, both by prescription and necessity, in that, they claimed a right of passage on a certain strip of land belonging to or in possession of the defendants. The suit, in the first instance, was dismissed by the trial Court on 22-11-1949. Title Appeal No. 273 of 1949 was preferred by the plaintiffs from the decree of dismissal passed by the trial Court The appeal was allowed by the Court of the Additional Subordinate Judge on 23-1-1951. The defendants preferred Second Appeal No. 528 of 1951 in this Court. It came up for hearing before Ahmad, J, (as he then was). His Lordship was pleased to refer it to a Division Bench on 21-9-1956. Finally, it was heard and decided on 25-11-1957 by Ramaswami, C, J. and Raj Kishore Prasad, J. Before the said Bench, an argument was advanced on behalf of the appellants that there was no finding by the lower appellate Court that there was use! of the disputed passage by the plaintiffs “as a matter of right”. Their Lordships felt the difficulty in deciding the question of law raised before them in absence of a finding by the lower appellate Court upon the question whether the plaintiffs had been using the disputed passage openly and peacefully for more than twenty years “as a matter of right” within the meaning of Section 26 of the Indian Limitation Act, 1908. After having said so in the earlier portion of the judgment, the final order passed in the appeal was in the following terms:
“We, accordingly, allow the appeal, set aside the decree of the lower appellate Court and remand the case for being reheard by the lower appellate Court and for being redecided in accordance with law. Costs will abide the result of the appeal after remand.”
Title Appeal No. 273 of 1949 was again allowed by the lower appellate Court on 8-9-1962. The defendants have preferred She present second appeal on 11-1-1963 from the decision of the lower appellate Court dated 8-9-1962. The appeal was admitted on 4-8-1964. When appeal notices were sent for service on the plaintiffs respondents, it was reported on 4-11-1964 that Kunja Dusadh, plaintiff No. 5 (respondent No. 5) was dead. Thereupon on 15-12-1964, the appellants filed an affidavit petition under Order 22, Rules 4 and 9 of the Code of Civil Procedure for setting aside the abatement and substitution of the heirs of deceased respondent No. 5, alleging that he died towards the end of 1957, after the delivery of the judgment in Second Appeal No. 528 of 1951. A counter affidavit was filed on behalf of the plaintiffs respondents on 21-4-1965 stating therein that respondent No. 5 died when Second Appeal No. 528 of 1951 was pending in this Court The appellants filed an affidavit in reply on 23-7-1965. By Order No. 29 dated 7-12-1965, the matter of incompetency of the appeal was directed to be considered at the time of its hearing, and by Order No. 30 dated 15-12-1965, the petition for setting aside the abatement and substitution filed by the appellants along with the counter affidavit and the affidavit in reply were also directed to be heard at the time of the hearing of the appeal. The matter eventually came before Misra, J. (as he then was), who was pleased to order enquiry into the matter of the death of respondent No. 5 by Order No. 38 dated 16-1-1967. The enquiry was directed to be made by the Court of appeal below. For the reasons stated in its enquiry report dated 15-3-1967, the Court of appeal below had to proceed in the matter of enquiry ex parte in absence of the appellants, and on the evidence adduced by the plaintiffs, it has recorded a finding that Kunja Dusadh died on 11-6-1954, that is to say, when Second Appeal No. 528 of 1951 was pending in this Court.
3. The appellants filed a petition on 3-5-1967 challenging the enquiry report mainly on the ground that they had no information or knowledge of the enquiry and the ex parte finding recorded in the report should not be accepted. A counter affidavit was filed on behalf of the respondents on 29-7-1967. By order No. 50 dated 8-1-1968, the petition dated 3-5-1967 and the counter-affidavit dated 29-7-1967 were directed to be considered at the time of the hearing of the appeal,
4. The appeal came up for hearing before Misra. J. (as he then was). By order No. 52 dated 1-3-1968, his Lordship, after quoting the last portion of the order of remand passed by the Bench of this Court in Second Appeal No. 528 of 1951 the passage that we have also quoted indicated that “their Lordships wanted to have a clear finding of fact recorded by the lower appellate Court, so that in substance that appeal itself remained undecided and what their Lordships intended to say was that the finding should be sent to this court by the lower appellate Court on the matter mentioned in the order as to whether the path which was being used was as a matter of right used and then the appeal would be decided on merit. . . .” Finally. Misra, J. referred the whole appeal and the entire matter to be heard by a Division Bench. This is how the matter came before us.
5. The appeal, in the first instance, was taken up for hearing on 29-11-1968. Mr. Prem Lal appearing for the appellants attacked the enquiry report chiefly on the ground that the Court of appeal below on the facts and in the circumstances of this case erred in proceeding in the matter of enquiry ex parte. Having heard learned counsel for the parties and after perusing the petition dated 3-5-1967 and the counter affidavit dated 29-7-1967 and the facts stated in the enquiry report, we felt satisfied that there was no substance in the grievance made out by the appellants. The Court of appeal below was justified in proceeding with the enquiry matter ex parte. On good evidence adduced before it, it has recorded the finding that Kunja Dusadh died on 11-6-1954. We did not feel persuaded to interfere with the enquiry report or to direct a fresh inquiry after giving opportunity to the appellants to adduce evidence in support of their case. The question then arises as to what is the proper procedure which should be followed now in face of the enquiry report, as affirmed by us that respondent No. 5 Kunja Dusadh had died during the pendency of Second Appeal No. 528 of 1951.
6. If during the pendency of an appeal in this court from a decision of the lower Court it is discovered or found that a particular necessary party died when the case was pending in the lower Court, there is no difficulty, as is the settled view of this Court by now, in setting aside the decree of the lower Court, whether it be of the trial Court or of any appellate Court, and remitting the case back to that Court for giving an opportunity to the party to file an application for setting aside abatement and substitution of the heirs of the deceased party. But here this was not the position. Plaintiff No. 5 died during the pendency of Second Appeal No. 528 of 1951, which had been disposed of by a different Bench of this Court. We are unable to agree with the tentative view expressed in Order No. 52 dated 1-3-1968 that the order of remand was to the nature of calling for a finding from the lower appellate Court keeping Second Appeal No. 528 of 1951 pending in this Court, as if a finding under Order 41, Rule 25 of the Code of Civil Procedure was called for. Feeling the difficulty in deciding the appeal finally on the question of law raised before it, the final order of remand which was passed on 25-11-1957, which we have quoted above, was clearly an order of open remand passed in exercise of the inherent power of this Court. The appeal was allowed and the decree of the lower appellate Court was set aside.
All that could not be it is plain if the intention was to keep the previous second appeal pending in this Court. The difficulty with which we are faced in the present second appeal is that perhaps it will not be quite legitimate or proper for this Bench to set aside the order of remand dated 25-11-1957 passed by another Bench of this Court and to direct the restoration of that appeal in order to give a chance to the appellants to file an application in that appeal for setting aside the abatement and substitution of the heirs of Kunja Dusadh.’ In the first instance, we felt inclined to take the view that in view of the finding recorded by the lower appellate Court in its report dated 15-3-1967 that Kunja Dusadh had died before the judgment of remand was passed in Second Appeal No. 528 of 1951, we shall be justified in declaring the order of remand a nullity as it was passed against persons, one of whom was dead, Mr. Prem Lal, however, intimated to us that the course which has been adopted in this Court by three learned Judges sitting singly in three different appeals has been in such a situation to set aside the order of remand passed in the previous appeal and to direct the consideration of the matter of abatement and substitution in that appeal. We did not feel convinced to adopt this course as it did not appear to us to be quite legitimate or proper for a Court of co-ordinate jurisdiction to do that. When the appeal came up for final hearing before us today, three cases were cited before us, one a Bench decision of the Calcutta High Court in Abdul Aziz v. Lakhmi Chandra Majumdar, AIR 1923 Cal 676, and two decisions of two learned Judges of this Court, both sitting singly in two different appeals. The facts in all the cases were almost identical. In the Calcutta case, the fact of the death of one of the parties during the pendency of the appeal in the High Court was discovered or found when the matter was pending in the lower appellate Court after remand.
In such a situation, it was said at page 677 that:
“The fact of the death of one of the respondents to the appeal did not destroy the jurisdiction of the Court If this Court had been apprised of the true state of facts, no doubt, the Court would have made an order of a different description. That very circumstance shows that the jurisdiction of this Court was not ousted by reason of the death of one of the respondents. We are of opinion that the District Judge should not have regarded the order of this Court as if it were null and void, but should have reported the matter to this Court for such action as might be deemed necessary in the events which had happened,”
After having said that the District Judge should not have regarded the order of the High Court as if it were null and void, the order which was finally made by the Bench was in the following terms:
“The result is that this appeal is allowed and the decree of the District Judge set aside. The case is remanded and recalled to the file of this court so that it may be placed before Richardson, J., who is the only member, now in this Court of the Division Bench which decided the appeal on the previous occasion. It is not proper for us to consider what order should be ultimately passed in this mat-ter.”
7. Das, J. fas he then was) followed the decision and the course adopted by the Calcutta High Court in the case of Abdul Aziz, AIR 1923 Cal 676 in Second Appeal No. 833 of 1947 decided on 20-4-1951 (Pat). His Lordship set aside the order of remand passed in the said appeal on 27-7-1949 as during the pendency of the appeal the death of one of the parties had taken place. There was no difficulty in doing so because the previous order of remand also had been passed by Das, J. In an identical situation, the same course was adopted by Choudhary, J. in the case of Bhagwat Prasad v. Bansi Mahton, AIR 1958 Pat 278, We were informed at the Bar that Sahai, J. in some appeal, exact reference of which could not be given to us, in a similar situation, had set aside the order of remand passed by Ahmad, J. (as he then was) and directed the consideration of the matter of the abatement and substitution in the previous appeal. We are unable, and we say so with great respect, to agree with the course adopted by Sahai, J, if it was so adopted as stated at the Bar. It is to be pointed out that even the Bench of the Calcutta High Court did not consider it fit and proper to set aside the order of remand passed by another Bench of that Court, of which Richardson, J. was a member. The case was directed to be placed before Richardson, J. obviously keeping in view the procedure prescribed under Order 47, Rule 5 of the Code of Civil Procedure. In spirit and substance, Das, J. (as he then, was) and Choudhary, J. followed the same course and they had no difficulty in setting aside their own orders of remand as in both those cases decided by them, the orders of remand had been passed by them.
8. We, therefore, allow this appeal, set aside the judgment and decree dated 8-9-1962 of the Court of appeal below and since neither of the learned Judges who had passed the order of remand in Second Appeal No. 528 of 1951 is a member of this Court now, the matter should be placed before the Hon'ble the Chief Justice for direction of his Lordship to place Second Appeal No. 528 of 1951 before an appropriate Bench to enable that Bench to pass such order as it may think fit and proper to pass in that appeal in view of the facts and circumstances which we have narrated in our judgment. We do not make any order as to costs.