JUDGMENT
Lalit Mohan Sharma, J.
1. This second appeal by the plaintiffs arises out of a suit filed for declaration of title and recovery of possession of 11 bighas 9 kathas and 7 dhurs of land of Jamabandi No. 16 and 1 bigha 14 kathas and 18 dhurs of land of Jamabandi No. 17 of village Amjora in Santhal Parganas.
2. According to the plaintiffs’ case in brief, Bhuto Singh left behind two sons Meghu Singh and Rito Singh. Rito Singh had a son Nanhku and a daughter Srimati Madhia Devi, Plaintiff No. 1, Munshi Singh, is the son of Nanhku Singh. Mostt. Madhia was married to Beni Singh who had two issues– a son Basuki and a daughter Mossamat Semri. Mossamat Semri was married to Bisho and had a daughter Radhia. Plaintiffs Nos. 2 and 3 are said to be the sons of Radhia. Meghu had a son named Suba whose son was Masudan. Defendant No. 1 Babulal and defendant No. 2 Jagdish Singh are the sons of Masudan. Defendants 3 to 6 are the sons of Babulal and defendants 7 and 8 are the sons of Jagdish. According to the further case of the plaintiff, the lands of Jamabandi No. 17 belonged to Nanhku who gave them to Mossamat Madhia. The land was recorded in the name of Basuki Singh. Basuki Singh also had other lands which he bad inherited from a stranger named Mossamat Mana-wati. It is further said that Masudan who was the Pradhan of the village dishonestly got the names of Basuki, Babulal and Jagdish mentioned in the revenue papers. In 1937 Basuki is said to have died leaving behind his sister Samri as his sole heir. Samri came in possession and remained so till her lifetime. In 1952, there was a batwara in the larger family and the entire lands of Jamabandi No. 16, which was joint, fell to the share of Samri. Samri in this way became the owner of the entire lands involved in the present suit. On the 12th March 1954, Semri is said to have executed a will in favour of plaintiffs Nos. 1 to 4. Plaintiff No. 4 is a stranger. In 1955 Semri died end the plaintiffs along with Radhia claimed exclusive possession of the land as against the defendants, who contested their claim. A proceeding under Section 144 of the Code of Criminal Procedure was decided against the plaintiffs. The defendants cut away certain bamboo trees and a criminal case started against them also ended in their favour. Emboldened by these developments, the plaintiffs further plead, that the defendants effectively dispossessed them and, therefore, the suit had to be brought.
3. Defendant No. 4 was a minor and was represented by a guardian adlitem. The suit was contested by all the defendants. Their case is that Beni Singh, who is described in the plaint as the husband of Mossamat Madhia, was actually the second son of Suba. He could not have married Mossamat Madhia and the plaintiff’s case is untrue. He was a brother of Masudan Singh Baski and Mossamat Samri, the son and daughter of Beni Singh were the first cousins of defendants 1 end 2. It is said that on their death the defendants were the heirs and got the property. They claimed to be in possession on the strength of the title.
4. The trial court accepted the case and the evidence of the plaintiffs rejected those of the defence and decreed the suit. The defendants appealed. In October, 1968 when the appeal was pending, defendant No. 4 died, admittedly leaving behind his mother, as his sole heir. No step for substitution was taken and the appeal was heard in that state. The learned lower appellate court took a view different than that of the trial court, reversed the decree and dismissed the suit. The plaintiffs have appealed.
5. This appeal was initially heard by me singly. On behalf of the appellants, it was contended that the appeal abated in so far as the heir of defendant No. 4 is concerned in the court of appeal below and having regard to the circumstances of the case, the entire appeal became incompetent and could not have been avowed by the court below. I directed that the appeal should be heard by a Division Bench. In these circumstances, the appeal has been placed before us.
6. Although the order of reference to Division Bench was made on the 24th September, 1974. no application for substitution was filed on behalf of the respondents. An affidavit has been filed stating that the deceased minor was joint with his father Babulal Singh, who was representing the family interest. The father was also the guardian and it was, therefore, considered not necessary to substitute the mother on the death of the minor.
7. Mr. Prem Lall, learned Advocate for the appellants has contended that as the defendants failed to substitute the mother of the deceased minor defendant as a party to the appeal before the court of appeal below, the entire appeal became incompetent. He has relied upon the decisions in AIR 1940 Pat 346 (FB); AIR 1938 PC 7; AIR 1940 Pat
117; AIR 1963 SC 1901 and AIR 1973 SC 655.
8. In Ramphal Sahu v. Satdeo Jha (AIR 1940 Pat 346), it was held that the provisions of Order 41, Rule 4 of the Code of Civil Procedure could not be pressed in service by the appellants, who failed to substitute the heirs of a deceased appellant and permitted the appeal partially to abate. This principle was affirmed by the Supreme Court in the case of Rameshwar Prasad v. Shambehari Lal Jagannath (AIR 1963 SC 1901). Mr. Lall has relied upon the decisions in Raja Ram v. Raja Bakhsh Singh (AIR 1938 PC 7) and AIR 1940 Pat 117 (Prahlad Das v. Dasrathi Satpathi) in support of the proposition that as the minor defendant was impleaded in the suit by name, there could not be any question of his representation through his natural guardian or the karta. Learned counsel appears to be right. These decisions establish that if a junior member of a family has been impleaded in the suit by name, there is no question of his representation through another person. In the case of Rameshwar Prasad (supra), the Supreme Court ruled 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.” This observation also supports the view canvassed before us on behalf of the appellants. I, therefore, hold that the interest of the mother of defendant No. 4 cannot be said to be represented by the remaining defendants.
9. Mr. Jugal Kishore Prasad, learned counsel appearing for the respondents contended that on the facts of the case it may be seen that only defendants 1 and 2 can be said to be the heirs of Baski and Mossamat Samri and defendant No. 4 could not have inherited the interest during the lifetime of defendants 1 and 2. Defendant No. 4, therefore, was just a trespasser and was not a necessary party at all to the litigation. It is said that in these circumstances, it must be held that the abatement of the appeal in regard to the interest of defendant No. 4 cannot affect the maintainability of the appeal by defendants 1 and 2, the claimants.
10. I have examined the joint written statement filed by defendants 1, 2 and 3 and the written statement filed by the guardian ad litem of defendant No. 4. The defendants have not taken care to clarify that the title according to their case vested only in the first and the second defendants. Defendants 1, 2 and 3 pleaded that the genealogy set up by the plaintiffs is incorrect, that Baski and Mossamat Samri were not the issues of Meghia and that Radhia the mother of plaintiffs 1 and 2 was not the daughter of Mossamat Samri. In paragraph 10 they further stated that after the death of Mossamat Samri, “these defendants inherited and came in possession of the suit properties as Mossamat Samri died issue-less and as she had mere life interest in the suit properties.” However, on the basis of this argument it may be assumed that the defence case must be interpreted to mean that defendants 1 and 2 only inherited the suit properties, but that does not solve the problem, All the defendants had asserted their possession on the strength of the title of defendants 1 and 2 and a decree was passed against them. In the written statement of defendant No. 4 also, the claim of the plaintiffs was challenged on the same grounds as mentioned in the written statement of defendants 1, 2 and 3. Paragraph 8 of the written statement is in the following terms:–
“The defendants are cultivating the land since a long time and are also in peaceful possession of the same.”
All the defendants including deceased defendant No. 4 contested the suit on the same ground and lost it. The decree of the trial court declaring the title of the plaintiffs to the suit properties and entitling them to recover possession was passed against all the defendants including defendant No. 4 and the appeal of defendant No. 4 having abated, the decree of the trial court against him became final. Now in these circumstances, if the appeal of the other defendants in the court of appeal below is held to be maintainable, there will be a likelihood of two inconsistent decisions in the same case, which is not permissible. This aspect of the matter was considered in paragraph 8 in the case of State of Punjab v. Nathu Ram (AIR 1962 SC 89), and it was held that “the abatement of an appeal means not only that the decree between the appellant and the deceased respondent has become final, but also as a necessary corollary, that the appellate court, cannot, in any way, modify that decree directly or indirectly”. That was a case, where the question of abatement arose on account of non-substitution of the heir of a deceased respondent. It was
further observed that in absence of the legal representative of the deceased, the appellate court cannot determine anything between the appellant and the legal representative, which may affect the rights of the legal representative under the decree. The question, whether the entire appeal will abate or not, will depend on the circumstances of a particular case, but the criterion to determine the question is whether in the event of the decree being allowed as in favour of the remaining appellants, there would or would not be contradictory decrees in same litigation with respect to the same subject-matter. (See the observation in Janak Sahu v. Anant Jha (AIR 1958 Pat 8). In the present case, I have no doubt that, if the appeal of the remaining appellants is permitted to be allowed, the decision will be inconsistent with the decree against defendant No. 4, which has become final.
11. Mr. Prasad cited several decisions where a party died when the suit was in the trial court and the heirs were not substituted. Unless the deceased party was a necessary party to the suit, the entire suit cannot abate. The situation, when the party dies at the appellate stage, is entirely different, inasmuch as a decree governing the deceased party j passed by the trial court complicates the situation. I, therefore, hold that those cases, where the question of abatement arises at the trial stage, are irrelevant, and it is not necessary to discuss them. Learned counsel also suggested that inasmuch as defendant No. 4 was a trespasser, on the case of the plaintiffs, his death cannot affect the appeal of defendants 1 and 2. I have pointed out above, that having regard to the claim of defendant No. 4 and the decree of the trial court binding him, it cannot be held that although the appeal abated as against him and the decree of the trial court against him became final, the claim of defendants 1 and 2 can still be investigated. The principle was discussed by a learned single Judge of this Court in the case of Jitu Mahton v. Puran Mahton (AIR 1961 Pat 96) at some length end the decision in that case appears to be quite correct. There were certain observations made in the case of Shibban v. Allah Mehar (AIR 1934 All 716) which appears to run counter to the principle accepted by me. The Allahabad High Court’s decision was considered at some length by this Court in the case of Jitu Mahton (supra) and I am in entire agreement with the comment made by this court on the decision of the Allahabad case. The decision in the case of Roop-chand v. Mithalal (AIR 1959 Raj 17) also supports the view that I am taking. I, therefore, hold that on account of the abatement of the appeal of defendant No. 4 in the court of appeal below, the entire appeal became incompetent and had to be dismissed. No application for substitution was filed either in the court of appeal below or even in this court.
12. The result is, that this second appeal must be allowed the judgment and the decree passed by the lower appellate court must be set aside and the decision of the trial court has to be restored. In the circumstances of the case, parties shall bear their own costs throughout.
Birendra Prasad Sinha, J.
13. I agree.
