Orissa High Court
Babaji Dehuri And Ors. vs Biranchi Ananta And Ors. on 8 March, 1996
Equivalent citations: 1996(I)OLR451, AIR 1996 ORISSA 183, (1996) 1 CIVILCOURTC 605, (1996) 1 ORISSA LR 451, (1996) 81 CUT LT 651, (1996) 2 LJR 72
Author: P.K. Misra
Bench: P.K. Misra
JUDGMENT P.K. Misra, J.
1. Some of the defendants are the appellants against the affirming appellate decision. Plaintiffs-respondents 1 and 2 had filed the suit for declaration of title, confirmation of possession, or in the alternative, recovery of possession in respect of the disputed land as described in plaint 'Ka' Schedule and for permanent injunction restraining the defendants from entering upon the disputed land.
2. Briefly stated, the case of the plaintiffs is as follows: The disputed 'Ka' schedule land originally belonged to Radhu Dehury (defendant No. 1), The plaintiffs purchased the said land in the year 1977 under a registered sale deed and remained in possession, Subsequently, the plaintiffs purchased another piece of land adjacent to the disputed land in the year 1980. In the year 1981, they learnt that the plot number and khata number as indicated in the sale deed in respect of the disputed land were not correct, Thereafter the plaintiffs sent notice to defendant No. 1 to rectify the mistakes, but defendant No. 1 did not pay any heed to such notice and, on the other hand, sold the very same land to defendants 2 to 34 by executing a sale deed on 15-4-1981. Thereafter on the basis of the subsequent sale deed, defendants 2 to 34 tried to disturb the possession of the plaintiffs for which the plaintiffs had to file the suit.
3. Defendants 2 to 34 filed a joint written statement denying the allegations made in the plaint. They took the plea that there was no mistake in the sale deed executed by defendant No. 1 in favour of the plaintiffs. It was further pleaded that defendants 2 to 34 after purchasing the land in 1981 had acquired valid title and were in possession. The question of limitation was also raised.
Defendant No. 1 in a separate written statement challenged the assertions made by the plaintiffs and supported the case of defendants 2 to 34.
4. The trial Court on consideration of the materials on record decreed the suit on a finding that there was an error in khata number and plot number in the transaction in favour of the plaintiffs and accordingly declared the title and confirmed the possession of the plaintiffs in respect of the disputed land.
On appeal by some of the defendants, the decision of the trial Court was confirmed. Hence the present second appeal by the very same defendants-appellants.
5. At the time of admission of the second appeal on 14-1-1986, grounds Nos. C, E and I were certified to be the substantial questions of law as envisaged in Section 100 of the Code of Civil Procedure. Grounds C, E and I are extracted hereunder: --
"C. For that the suit is originally one for rectification of mistake committed in a sale deed should have been filed within a period of three years inasmuch as the appellate Court has lost sight of this aspect of the case, E. For that in view of the specific objection of the defendants that the suit was grossly undervalued the learned Munsif should have framed the issue regarding valuation as a preliminary issue and after deciding that issue should have proceeded in trial of the suit.
I. For that in view of the detail description of the sabit plot no. with the area thereof in sale deed Ext. 2 executed by defendant No. 1 in favour of the plaintiff the Courts below should not have come to the conclusion that the suit land has been sold under the sale deed."
6. The learned Advocate for the plaintiffs-respondents raises a preliminary objection to the maintainability of the appeal. He submits that in view of the dismissal of the appeal as against respondents 5, 9 and 12, the entire appeal is liable to be dismissed. On a perusal of the records it appears that the appellants were required to take steps for substitution in place of deceased respondents 5, 9 and 12 and though petitions for substitution were filed, separate petitions for condonation of delay had not been filed. Time was granted to the appellants on several occasions to take steps for filing separate petitions for condonation of delay. Ultimately, on 2-1-1990, a peremptory order was passed directing the appellants to take steps within ten days. As the appellants did not comply with the peremptory order, the appeal stood dismissed as against respondents 5, 9 and 12, as recorded on 24-1-1990. Respondents 5,9 and 12 were respectively defendants 16, 24 and 31 in the trial Court.
It is contended by the counsel for the plaintiffs-respondents that the suit arose out of a common cause of action against defendants 2 to 34 and the said defendants had filed a joint written statement. The suit had been decreed against all the defendants including defendants 16, 24 and 31 (now deceased) and the decree proceeded on a ground common to all the defendants and as such the appeal is no longer maintainable after abatement and dismissal of the appeal so far as defendants 16, 24 and 31 (respondents 5, 9 and 12 respectively) are concerned. Relying upon the decisions reported in AIR 1962 SC 89 (State of Punjab v. Nathu Ram); AIR 1965 SC 1531 (Union of India v. Shree Ram Behra) and AIR 1973 SC 204 (Babu Sukhram Singh v. Ram Dular Singh) he submits that the decree in favour of the plaintiffs so far as defendants 16, 24 and 31 are concerned has become final and if ultimately the appeal of the other defendants is allowed and the suit of the plaintiffs-respondents is dismissed, it will give rise to two inconsistent decrees arising out of the same cause of action and same suit. Therefore, he submits that the entire appeal should be held to be not maintainable in the absence of the legal representatives of respondents 5, 9 and 12 who were defendants 16, 24 and 31 respectively.
The learned counsel for the defendants-appellants, on the other hand, submits that in the present second appeal, no relief was being claimed against defendants 16, 24 and 31 who were co-defendants of the present appellants. He further submits that if any decision is rendered in favour of the present appellants, the same will enure to the benefit of the deceased defendants-respondents and as such there is no scope of directing abatement of the entire appeal. In support of the aforesaid submission, he has placed reliance on the decisions reported in AIR 1982 SC 948 (Bhure Khan v. State of Madhya Pradesh); AIR 1975 SC 733 (Harihar Prasad Singh v. Balmiki Prasad Singh) and AIR 1972 SC 1181 (Ramagra Prasad Gupta v. Murli Prasad). The aforesaid rival contentions of the parties require careful consideration.
7. Abatement or dismissal of the suit against a defendant or a respondent does not automatically result in abatement or dismissal of the entire suit. If death takes place during the pendency of the suit, the main question is as to whether the suit can proceed in the absence of the deceased defendant. At that stage there is no question of any conflicting decree or conflicting finding. If it is found that the suit cannot proceed against the other defendants, the suit has to be dismissed in toto. The question is slightly different when the death takes place at the appellate stage. Though, as held in the decision, reported in AIR 1962 SC 89, no general principle can be laid down covering all cases, ordinarily, the tests applied are three-fold in nature, The appellate Court will not proceed with an appeal, (a) when the success of the appeal may lead to the Court's coming to a decision which will be in conflict with the decision already rendered and give rise to passing of two inconsistent decrees in respect of the same subject-matter; (b) when the appellants could not have brought the action for necessary reliefs against those respondents alone who are still before the Court and (c) when the decree against the surviving respondents, if the appeal succeeds, will be ineffective. As has been held subsequently in many decisions the aforesaid tests are not cumulative and if any one condition is satisfied, the entire appeal has to be dismissed. The decisions cited by the learned counsel for the parties do not purport to take a view contrary to the aforesaid exposition of law as culled out from the decision, reported in AIR 1962 SC 89 and those cases have been decided on the basis of facts and circumstances relevant in those cases.
When a decree against several parties is passed, it is open to some of the aggrieved parties to file appeal. It is trot the law that when a decree is passed on a ground common to all the parties, the appeal has to be filed by all the parties or not at all. It is open to any one or more of the aggrieved parties to file appeal and ultimately if the appeal becomes successful it may enure to the benefit of the non-appealing parties. In the present case, it is true that defendants 16, 24 and 31 who were respondents 5, 9 and 12 had not filed any appeal against the decree of the trial Court as well as the lower appellate Court. If ultimately the appeal would be allowed, the same would enure in favour of the non-appealing parties in view of the provisions of Order 41, Rule 4 of the Code of Civil Procedure. My aforesaid view gains ground from the decisions reported in AIR 1971 SC 742 (Mahabir Prasad v. Jage Ram) and AIR 1970 SC 108; (Ratan Lal Shah v. Firm Lalman Das Chhadamma Lal) arising almost under similar circumstances.
The learned counsel for the plaintiffs-respondents has, however, submitted that the provisions of Order 41, Rule 4 of the Code of Civil Procedure are applicable at the stage of filing appeal and not thereafter. He further submitted that since the non-appealing defendants had been impleaded as respondents, the appeal abated on the death of any one or more of such respondents. He has placed reliance on the decisions reported in AIR 1963 SC 1901 (Rameshwar Prasad v. Shambehari Lal Jagannath) and 1976 (2) CWR 878 (Ranjit Mohanty v. Niranjan Das). The decision reported in AIR 1963 SC 1901 is clearly distinguishable. In that case, nine persons had filed the suit for ejectment and recovery of rent against two defendants and had obtained the decree. The appellate Court had set aside the decree against one of the defendants and the plaintiffs had filed the second appeal in the High Court. During the pendency of the second appeal, one of the plaintiffs-appellants expired and there was no substitution. The High Court held that on the death of one of the plaintiffs-appellants, the entire appeal abated. In appeal, relying upon the provisions of Order 41, Rule 4, Code of Civil Procedure, it was contended that the remaining plaintiffs could have prosecuted the appeal. The Supreme Court held that the provisions of Order 41, Rule 4 of the Code of Civil Procedure were not applicable, as the second appeal was, in fact, filed by all the plaintiffs jointly and the surviving appellants could not be said to have filed the appeal as representing the deceased appellant.
As a matter of fact, the Punjab High Court had relied upon the aforesaid decision in AIR 1963 SC 1901 and held that when a decree proceeds on a ground common to more persons than one and the appeal is filed by one or more of them, but not all, and other persons who are interested in the result of the appeal were not made parties to the appeal either as appellants or respondents, the provisions of Order 41, Rule 4 would be applicable. But where such other persons were made parties to the appeal and on the death of one his heirs are not brought on record, the appeal abates in its entirety. Such view of the Punjab High Court was reversed in the decision in AIR 1971 SC742, and it was held that even if a non-appealing party has been impleaded as respondent and dies during the pendency of the appeal, there is no abatement of the entire appeal. Though AIR 1963 SC 1901 was a decision rendered by 3 Judges, and AIR 1971 SC 742, was decided by 2 Judges, the latter view which has taken note of and distinguished the earlier view is to be followed.
So far as 1976 (2) CWR 878 is concerned, no doubt, it supports the contention of the plaintiffs-respondents and the facts are almost similar. However, the said decision has been rendered without taking note of the decisions reported in AIR 1970 SC 108 and more specifically, AIR 1971 SC 742, which are directly applicable to the facts of the present case. Since the decision of the learned single Judge has been rendered without taking note of the Supreme Court decisions which are directly applicable, I am in respectful disagreement with the views expressed in the decision of the learned single Judge and held that the dismissal of the appeal against respondents 5, 9 and 12 does not affect the maintainability of the entire appeal and the present appeal has to be disposed of on merit.
8. Even then on merit, the appeal is bound to fail. So far as ground 'E' is concerned, the question is one relating to pecuniary jurisdiction of the Munsif. The trial Court had framed Issue No. 4 to the following effect:--
"4. Whether the suit is undervalued and this Court has pecuniary jurisdiction to try the suit?"
The trial Court decided the issue in favour of the plaintiffs and held that the suit had been properly valued and the Court had pecuniary jurisdiction to try the suit. From a perusal of the judgment of the lower appellate Court, it appears that the correctness of the aforesaid finding of the trial Court had not been raised. Even assuming that the trial Court had no jurisdiction, that alone is not a ground to set aside the decision of the trial Court, unless the appellants can show prejudice. Nothing has been indicated as to how the appellants were prejudiced by the trial of the suit in the Court of the Munsif and disposal of the appeal by the first appellate Court. Thus, the contention raised in ground 'E' is without any merit.
9. In ground 'C', the appellants have raised the question of limitation contending that the suit being essentially one for rectification of mistake committed in the sale deed should have been filed within a period of three years. The question of limitation was decided by the trial Court under Issue No. 3 and answered against the defendants. The trial Court held that the suit being essentially one for declaration of title and possession and having been filed in 1981, that is to say, within twelve years from the date of purchase in 1977, was not barred by limitation. The aforesaid finding of the trial Court does not appear to have been challenged in the first appellate Court. However, in view of Section 3 of the Limitation Act which casts a duty on the Court to consider the question of limitation even if not raised by the parties, such a contention can be permitted to be raised for the first time in appeal or second appeal, if no question of fact is involved. No doubt, the plaintiffs instead of filing the suit for declaration of title and for possession could have filed a suit for rectification of the sale deed in accordance with Section 26 of the Specific Relief Act within a period of three years. However, the party is not precluded from suing for possession on the basis of title in which case the period of limitation is governed by Article 65 of the Limitation Act. Accordingly, I hold agreeing with the view of the trial Court that the suit was not barred by limitation.
10. Ground 'I' relates to the question of merits of the contentions raised by the plaintiffs. As per the case of the plaintiffs, there was a misdescription of the property in the sale deed and though boundaries of the property sold had been correctly given and possession had been delivered after execution of the sale deed, there was mistake in the plot number and khata number. Both the Courts below accepting the contention of the plaintiffs have held that there was a misdescription of the property so far as plot number and khata number are concerned, but the boundaries had been correctly given. Whenever there is any misdescription of the property, the real intention of the parties has to be gathered from the surrounding circumstances as well as the sale deed. Though it is not an inexorable principle of law, but ordinarily it is said that depending upon the facts and circumstances of each case, whenever there is a conflict in the description of a property in a sale deed or any other instrument so far as plot number, khata number and boundaries are concerned, generally speaking, the boundaries are to prevail. The aforesaid principle can be culled out from the decisions reported in AIR 1963 SC 1879 (Sheodhyan Singh v. Mst. Sanichara Kuer), AIR 1971 Orissa 215 (Dinabandhu Sathi v. Chintamani Sahu) and 1973 (2) CWR 1255 (Dhoboi Behera v. Nabaghana Senapati). As already said, generally speaking, whenever there is any such misdescription, ordinarily the description as per the boundaries may be preferred to represent the correct intention of the parties. I must hasten to add, this is not an inexorable principle of law. In any case, in the case at hand, the Courts below after a thorough discussion of the materials on record and relevant principles of law have come to the conclusion that the boundaries of the land given in the sale deed by defendant No. 1 in favour of the plaintiffs executed in the year 1977 are to prevail and on that basis, title has been declared. I find no error of law in such conclusion of the Courts below and accordingly decline to interfere in the matter.
11. In the result, the appeal is dismissed, but without any costs.