JUDGMENT
Iqbal Ahmad, J.
1. This is a plaintiffs’ appeal and arises out of a suit for possession of a house and for recovery of damages on the allegation that the house belonged to the plaintiff-appellants, and that the defendants had taken unlawful possession of the same and having demolished a portion of the house were constructing a new house.
2. The defence to the suit was that the defendants were building a house on an aftada piece of land that belonged to the zemindar with the latter’s permission, and that there was no house of the plaintiffs on that piece of land at the time that the defendants were permitted by the zemindar to build a house. The defence found favour with the trial Court and it dismissed the plaintiffs’ suit, and the decree of the trial Court has been affirmed by the lower appellate Court.
3. When the appeal was called on for hearing, a preliminary objection was taken by the learned Counsel for the respondents, that, because of the omission of the plaintiffs-appellants to bring upon the record one of the legal representatives of Roshan Lal, one of the deceased respondents, within the time allowed by law, the entire appeal had abated. This objection is based on the following facts. The suit was originally instituted against two defendants, Roshan Lal and Shanker Lal, and both of them were arrayed as respondents in the present appeal. During the pendency of the appeal in this Court Roshan Lal died, leaving as his legal representatives two persons Shanker Lal and Prem Narain. Shanker Lal being already a party to the appeal a note was made on the record on the application of the plaintiffs-appellants, that he is also a legal representative of Roshan Lal, and Prem Narain was not brought upon the record as a legal representative of Roshan Lal. It is argued by the learned Counsel for the respondents that Prem Narain not having been brought upon the record, the appeal abated not only as against Roshan Lal, the deceased respondent, but abated as a whole, and in support of the argument reliance has been placed by him on the case of Daya Ram Ojha v. Ram Narain A.I.R. 1925 All. 623.
4. In my judgment the preliminary objection is well founded and must prevail. It is provided by Order 22, Rule 4 that where one of two or more defendants dies, and right to sue does not survive against the surviving defendant or defendants alone, and within the time limited by law no application is made to bring upon the record the legal representatives of the deceased defendant “the suit shall abate as against the deceased defendant,” This rule is made applicable to appeals by Order 22,. Rule 11, Civil P.C., True it is that the words “as against the deceased defendant” were not to be found in the corresponding section of the old Code, viz., Section 368, Act 16 of 1882. But notwithstanding the introduction of these words in the new Code, it does not necessarily follow that the omission of an appellant to bring upon the record the legal representatives of one of several respondents to an appeal, on whose death the right to continue the appeal does not survive against the surviving respondent or respondents alone, may not, in certain cases, cause an abatement of the entire appeal. One class of cases in which the omission to bring the legal representatives of one of several respondents, who dies during the pendency of the appeal, causes an abatement of the entire appeal is that where the respondents to the appeal are the plaintiffs in the suit in whose favour a joint decree was passed as against the defendants-appellants. Instances of this class of cases are to be found in the oases reported as Sheikh Dendoo v. Sheikh Sachoo A.I.R. 1924 Cal. 399, Sardari Lal v. Ram Lal [1920] 1 Lah. 225 and Kali Dayal Battacharjee v. Nagendra Nath Parkashi [1920] 30 C.L.J. 217. The reason, why the omission to bring upon the record the legal representatives of one of the deceased plaintiffs-respondents was held in these cases to cause an abatement of the entire appeal, was that if the appeal was heard as against the surviving respondents and was allowed and their claim was dismissed, there will come into existence two decrees inconsistent with each other, viz., (1) the decree of the appellate Court dismissing the claim of the surviving plaintiffs-respondents and (2) the decree of the Court below in favour of the deceased plaintiff-respondents against whom the appeal had abated. In other words the result of holding in such cases that the appeal had not abated in its entirety may be to set aside the decree appealed against in respect of some of the plaintiffs while leaving that decree intact is regards the other plaintiffs. If the decree was a joint decree in favour of all the plaintiffs-respondents, the defendants, oven if the appeal were allowed against the surviving plaintiffs-respondents, would not be entitled to the property in dispute as against the legal representatives of the deceased plaintiff-respondent against whom the appeal had abated.
5. The principle underlying the cases noted above applies to the present case. If the appeal were to be heard and decided as against the surviving respondent and were to be allowed, two inconsistent decrees will come into existence, viz., (1) the decree of this Court granting the plaintiffs a decree for possession of the property in dispute against the surviving respondent, and (2) the decree of the lower appellate Court dismissing the plaintiffs’ claim that has become final between the deceased respondent and the appellants. The necessary consequence of two such inconsistent decrees standing side by side will be that the decree of this Court will be incapable of execution inasmuch as the plaintiffs cannot be put in actual possession of the property in dispute because there is in existence the decree of the lower appellate Court dismissing the plaintiffs’ claim as against the deceased respondent as regards every portion of the property in dispute.
6. The appeal must fail on the merits as well. The only ground on which the decree of the lower appellate’ Court is assailed by the learned Counsel for the plaintiffs-appellants is that in accordance with the provisions of the wajib-ul-arz relating to houses in occupation of faiyats in the village, the plaintiffs were entitled to a decree notwithstanding, the finding of the lower appellate Court that the house of the plaintiffs fell down about 15 years prior to the institution of the suit.
7. The wajib-ul-arz provides:
in case of the houses of the raiyats or residences remaining unoccupied or being abandoned or there remaining no marks of them, we (the zemindars) are entitled to let them to others, to demolish them or, to build or to get built new houses (in their places).
8. It would appear from this that a zemindar has a right to occupy a house or to let it to others if it has remained unoccupied or has been abandoned by a raiyat who owned the house. The lower appellate Court has found as a fact that the house in dispute was abandoned by the plaintiffs more than 15 years ago and remained unoccupied since then, and that, as a matter of fact, the house fell down about that time. On these findings the plaintiffs had no right to the reliefs claimed by them and the suit has been rightly dismissed by the Courts below.
9. The appeal fails and is dismissed with coats.
