Calcutta High Court (Appellete Side)
Sri Banku Behari Jhal & Ors vs Sri Maloy Kr. Banerjee on 20 December, 2011
Author: Tapan Kumar Dutt
Bench: Tapan Kumar Dutt
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present :
The Hon'ble Justice :- Tapan Kumar Dutt
S.A. 411 of 2009
Sri Banku Behari Jhal & Ors.
- Versus -
Sri Maloy Kr. Banerjee.
Mr. Mr. Amitava Mukherjee,
Ms. Arpita Saha,
Ms. Soumi Majumdar.
.... For the Appellants
Mr. Bratindra Narayan Ray,
Ms. Priyanka Das.
.... For the Respondent.
Heard on: 10.08.2010,19.05.2011,04.08.2011,05.08.2011, 11.08.2011,18.08.2011,02.09.2011,08.09.2011, 16.09.2011 29.09.2011,30.09.2011.
Judgment on: 20.12.2011 2 This Court has heard the learned Advocates for the respective parties.
The facts of the case, briefly, are as follows:
The appellants along with one Sri Krishna Chandra Jhal filed Title Suit No. 286 of 1995 which was re-numbered as Title suit No. 95 of 1998 and was placed before the learned Civil Judge (Junior Division), Additional Court at Asansol, Burdwan. The said suit was filed against the respondent and one M/s. Bengal Coal Company and the B.L. & L.R.O, Kulti and also the State of West Bengal through the Collector, Burdwan. In the said suit the said Krishna Chandra Jhal was the plaintiff No.1. The plaintiffs prayed for a decree for declaration of the plaintiffs' alleged absolute title in the suit property upon the findings that both the R.S. as well as the one man one khatian recording in the name of the defendant No.2 (Bengal Coal Company) is wrong and the alleged kobala deed dated 29.02.1977 executed by Shefalika Dey in favour of the defendant No.1 (respondent) is a void deed. The plaintiffs prayed for a decree of 3 permanent injunction for restraining the defendants from entering into the suit property and from disturbing the plaintiffs' alleged peaceful khas possession in the same and from dispossessing the plaintiffs therefrom. The plaintiffs also prayed for a decree of mandatory injunction against the defendant Nos. 3 and 4 [(B.L. & L.R.O) Kulti and State of West Bengal, respectively] directing the said defendants to record the suit property in the name of the plaintiffs after cancelling the name of the defendant No.2. The case of the plaintiffs was, inter alia, to the effect that one Jadu Jhal (Plaintiffs' grand father) was the absolute owner of 6 decimals of land (suit property) out of 24 decimals of land in a certain plot No. 252 which he got by way of amicable partition and the said Jadu Jhal had been in peaceful possession of the said 6 decimals of land for much more than 12 years continuously, openly and without any interruption and to the knowledge of the defendants. The plaintiffs case is that before the R.S. records were prepared the said Jadu Jhal died leaving behind his two sons, that is, Jogendra Jhal (father of the plaintiff No.1) and Nagendra Jhal ( father of the plaintiff Nos. 2 to 4) and the said two sons of Jadu Jhal continued to be in peaceful khas possession of the said property. According to the plaintiffs, Jogendra 4 died leaving behind the plaintiff No.1 as his only son and legal heir and the said Nagendra died leaving behind the plaintiff Nos. 2 to 4 as his only sons and legal heirs. The plaintiff has pleaded that the plaintiffs as heirs and successors of the said Nagendra and Jogendra have jointly inherited the said 6 decimals of land and the plaintiffs have been jointly possessing the suit property as absolute owners. The plaintiffs' case is that neither the plaintiffs' predecessors nor the plaintiffs have ever transferred the suit property to any person but on 20.11.1995 the defendant No.1 with his men and agents attempted to take forcible possession of the suit property on the plea that he had purchased the suit property from one Shefalika Dey on 29.2.1977.
The plaintiffs have alleged that on 21.11.1995 the plaintiffs came to learn from the office of the B.L & L.R.O that the said entire suit plot No. 252 has been recorded in the name of the defendant No.2 in the R.S. records-of-rights and on such basis the present one man one khatian recording has also been done in the name of the defendant No.2. The plaintiffs have alleged that their uncle Motilal Jhal was entrusted to have the suit property recorded in the record-of-right in favour of the plaintiffs but in the absence of the plaintiffs the recording in the revenue records were made erroneously in the name 5 of the defendant No.2. The plaintiffs have alleged that the defendant No.3 has already turned down the prayer for correction of the record- of-right and hence the plaintiffs had to file the said suit. The plaintiffs have stated that the cause of action of the suit arose on 20.11.1995 and 21.11.1995.
The defendant No.1/respondent contested the said suit by filing a written statement denying the material allegations made in the plaint and contended, inter alia, that the right, title and interest of the Jhals in plot No. 252 in suit "devolved upon one Smt. Anna alias Amina Devi and said Anna alias Anima Rani Devi while had been in possession of the said land along with other lands sold the same to M/s. Bengal Co. Ltd. by registered deed of sale" in the year 1951 and the said "M/s. Bengal Co. Ltd. while had been in possession of the said plot No. 252 since the date of its said purchase, sold and transferred the same to Smt. Shefalika Devi" by a deed of sale dated 24th April, 1966. The defendant No.1 further pleaded that the said Shefalika Devi while in possession of the said plot No. 252 sold a specific portion thereof measuring .08 acres (equivalent to 5 cotthas) to the defendant No.1 by a registered of sale dated 27.02.1979 and delivered possession thereof to the defendant No.1. But, 6 unfortunately, the name of the Mouza was wrongly written as 'Jasaidih' in place of 'parira'. It may be noted here that the learned Advocate for the appellants submitted that instead of 'Parira' it should be read as 'Porrah'. The defendant Nos.1's case was that he requested the said Shefalika Devi for correction of the mistake but since it was not done the said defendant filed a title suit No. 100 of 1996 against the said Smt. Shafalika Devi for rectification of the said mistake in the deed. The said T.S. 100 of 1996 was decreed ex parte on 10.09.1997 against the said Shafalika Devi. The said defendant denied that the said Jadu Jhal and his brothers got the suit plot amicably partitioned and he disputed that the said Jadu Jhal got .06 decimals of the suit land in his share. The said defendant also disputed that the plaintiffs are in possession of the said 6 decimals of land for more than 12 years. The said defendant stated that he has been in possession of the said .08 acres of the plot since his purchase. The said defendant further alleged that the plaintiffs or their predecessors Nagendra and Jogendra or Jadu Jhal did not ever have title or possession in any portion of the suit plot within "40 years or more from before the institution of the suit". The said defendant also alleged that after filing of the suit the plaintiffs 7 obtained an order of ad interim injunction by suppressing the material facts and have been illegally raising construction over the suit property and have been trying to dispossess the said defendant by raising wall. The said defendant prayed for dismissal of the suit.
The said suit came up for final hearing when the learned Trial Court by judgment and decree dated 20th May, 2003 in title suit No. 98 of 1998/286 of 1995 dismissed the said suit upon the finding that the suit is barred by the law of limitation, and also the suit "is bad for defect of necessary party". The learned Trial Court came to the conclusion that the plaintiffs have no right, title and interest over the suit property and there was no cause of action for filing the said suit and the suit fails.
Challenging the said judgment and decree of the learned Trial Court the plaintiffs/appellants filed title appeal No. 23 of 2004/90 of 2003 which was placed before the learned Additional District and Sessions Judge, Fast Track, Third Court, Asansol and the said learned Judge by judgment and decree dated 20th December, 2004 dismissed the said appeal. The learned Lower Appellate Court found that the P.W. 1 deposed that the plaintiffs were minor at the time of the demise of their father and Khantobala (wife of Jogendra Jhal) and 8 Nabubala (wife of Nagendra Jhal) had sold out the suit properties and possession was delivered to the respective purchaser. The learned Lower Appellate Court found that from the recitals of Ext. K it will appear that Khantobala and Nabubala sold the suit property on behalf of their minor sons, that is, the plaintiffs 1 to 4 to Smt. Allarakhi Devi in the year 1943 and subsequently the said Allarakhi Devi sold the suit property in favour of M/s. Bengal Coal Company vide Ext. J. The learned Lower Appellate Court also found that the said Bengal Coal Co. Ltd. sold the suit property in favour of Smt. Shefalika Dey vide Ext. B and the said Shefalika Dey sold the suit property in favour of the defendant No.1/respondent vide Ext. A and the learned Lower Appellate Court found from Ext.C it will appear that the suit property was recorded in the name of M/s. Bengal Coal Co. Ltd. The learned Lower Appellate Court found that the entries in the R.S. record-of-right in favour of Bengal Coal Co. Ltd. cannot be said to be erroneous. It appears that there was a mistake in the description of the Mouza in Ext. A inasmuch as it was wrongly mentioned as Mouza 'Jasaidih' in place of 'porrah' in the schedule of the said deed but such mistake was rectified by decree passed in a certain title suit No. 100 of 1996 in the Court of the learned Second 9 Munsif, Asansol. It appears that the plaintiffs/appellants took the plea that since they were not parties to the said T.S. 100 of 1996 the said decree is not binding on them. The learned Lower Appellate Court found that the parties are litigating over the same property and the said decree has a binding effect in so far as the parties are concerned. The learned Lower Appellate Court found that during the pendency of the suit the names of the defendant Nos. 2 to 4 were deleted from the cause title of the plaint on the prayer of the plaintiffs/appellants as during the pendency of the suit the plaintiffs got their names recorded in the L.R. record-of-right (Ext. 2 series). The learned Lower Appellate Court found that the name of Bengal Coal Co. Ltd. was recorded in the record-of-right in respect of the suit property and there was a basis for such recording but there is nothing on record from which it can be presumed that the plaintiffs/appellants had subsequently acquired title in the suit property and as such it can be inferred that the entries in the L.R. record-of-right are not correct and the learned Trial Court was justified by not placing any reliance upon such entries in the L.R. record-of-right. The learned Lower Appellate Court also found that the deed of 1943 executed by the respective mothers of the plaintiffs 10 (Nabubala being the mother of Plaintiff Nos. 2 to 4 and Khantabala being the mother of plaintiff No.1) in favour of Allarakhi Devi could not have been challenged after the expiry of 60 years and that the plaintiffs could have challenged the said deed after attainment of majority. It appears from the impugned judgment that a point was taken on behalf of the plaintiffs/appellants that the sale deed of 1943 is not binding on them as minors' property was sold without obtaining permission from the learned District Judge concerned. The learned Lower Appellate Court took note of the fact that the plaintiff No.1, Krishna Chandra Jhal, had died during the pendency of the suit on 13.12.2001 and the learned Trial Court had rejected the prayer for adding the legal heirs of the deceased plaintiff No.1 and the suit in respect of the plaintiff No. 1 had abated. The learned Lower Appellate Court found that during the pendency of the suit the plaintiffs obtained the L.R. record-of-right in their favour which has no basis at all. The learned Lower Appellate Court came to the conclusion that the conduct of the plaintiffs/appellants shows that they are trying to disturb the possession of the defendant No.1 though the plaintiffs/appellants have no right, title and interest in the suit property and the learned Trial Court rightly dismissed the 11 suit. It will thus appear that the learned Lower Appellate Court also found that the suit was barred by the law of limitation as the said deed of 1943 was challenged after the expiry of about 60 years.
The plaintiffs/appellants challenging the impugned judgment and decree passed by the learned Lower Appellate Court has preferred the instant appeal being SA No. 411 of 2009. The instant appeal was admitted for hearing by an Hon'ble Division Bench's order dated 25.04.2005 on the following substantial questions of law:
"a) Whether the learned courts below committed substantial error of law in relying upon the judgment and decree passed in Title Suit No.100 of 1996 in arriving at the conclusion that the title passed in favour of defendant No.1, notwithstanding the fact that the plaintiffs were not made party in Title Suit No. 100 of 1996.
b) Whether the learned courts below committed substantial error of law in holding that by virtue of the sale deed executed by the mothers of the plaintiffs who had admittedly no title to the property, the predecessor-in-interest of the defendant No.1 had acquired any title to the property.
c) Whether the learned courts below committed substantial error of law in holding that by virtue of the sale deed executed by the 12 mothers of the plaintiffs, their right in the property had been conveyed in favour of the predecessor-in-interest of the defendant notwithstanding the fact that the plaintiffs were admittedly all minors at the time of execution of those sale deeds."
It appears that one of the heirs and legal representatives of the said Krishna Chandra Jhal, since deceased, had made an application under Order 1 Rule 10 C.P.C. in this Court for adding the said heir as a party but this Court by an order dated 05.08.2001 had rejected such application. It further appears that the learned Trial Court had also rejected the application for adding the said heir of Krishna Chandra Jhal, since deceased, as a party to the suit and such order of rejection was challenged in civil revision but the said civil revision case was also dismissed on contest. It further appears from the order dated 05.08.2011 that the learned Advocate for the said heir of Krishna Chandra Jhal, since deceased, had submitted that the matter rested there and no further step was taken by the applicant of the said application in this regard and in the title appeal concerned no step was taken by the said heir and legal representative of the said Krishna Chandra Jhal, since deceased, and the said title appeal was filed by the other three plaintiffs and the said heir and legal 13 representative of the said Krishna Chandra Jhal, since deceased, was not a party in the title appeal.
The learned Advocate appearing on behalf of the defendant No.1/respondent raised a preliminary point to the effect that the suit has abated as a whole and the present second appeal is not maintainable at the instance of three of the four plaintiffs. The said learned Advocate submitted that the four plaintiffs had filed the suit on the basis of the common cause of action and all the plaintiffs together sought for a declaration of title and the declaration that has been prayed for in the plaint is a declaration of joint right, title and interest of all the four plaintiffs in the suit property and thus the suit had abated as a whole and the present second appeal is not maintainable at all. In support of his submission the said learned Advocate for the defendant/respondent cited a decision reported at AIR 1963 SC 1901( Rameshwar Prasad & Ors.-V- Shambehari Lal Jagannath & Anr.). It appears from the said reports that nine persons, including one Kedar Nath, had instituted a suit for ejectment and recovery of rent against two defendants on the allegation that the defendant No.1 was the tenant who had sublet the premises to the defendant No.2 and the said suit for ejectment was 14 decreed against both the defendants and for arrears of rent against the defendant No.1. On appeal, by the defendant No.2, the learned District Judge set aside the decree of ejectment and confirmed the rest of the decree against the defendant No.1 and it is against such decree that the nine original plaintiffs filed the second appeal in the High Court. During the pendency of the second appeal the said Kedar Nath died and the appeal abated so far as Kedar Nath is concerned and no application for bringing his legal representatives on record was made within the prescribed time. However, subsequently, two applications were filed in High Court - one was application under Section 5 of the Limitation Act for condoning the delay in the filing of the application for substitution of the heirs of Kedar Nath and the other was application for substitution itself for bringing the sons of Kedar Nath on record in place and stead of the deceased Kedar Nath but such two applications were dismissed and the appeal abated as against Kedar Nath. When the appeals of the appellants, other than Kedar Nath, came up for hearing a preliminary objection was taken for the respondent that the appeal has abated. It appears that it was argued by the learned Counsel for the appellants before the Hon'ble Court that the deceased belonged to Joint Hindu family and since 15 other members of the family were already on record it was not necessary to bring on record any other person and the appeal could not have abated. It appears that affidavit and counter-affidavit were filed in the said reported case with regard to the question as to whether the deceased Kedar Nath was a member of the joint Hindu family or not. The Hon'ble Supreme Court in Paragraph 8 of the said reports noted that at the hearing of the appeal of the surviving appellants, the only point which was urged for consideration seems to have been that the surviving appellants were competent to continue the appeal in view of Order XLI Rule 4 C.P.C but the said contention was repealed as the interests of the surviving appellants and the deceased appellant were joint and indivisible and as in the event of the success of the appeal there would be two inconsistent and contradictory decrees. The said appeal was dismissed and against such decree the matter went up to the Hon'ble Supreme Court. The Hon'ble Supreme Court was pleased to hold that the application for substituting the sons of the said Kedar Nath was on the basis that Kedar Nath was not a member of the joint Hindu family and it was not proved that Kedar Nath and the other appellants constituted a joint Hindu family, that the right to appeal survived to the surviving 16 appellants alone and that they could have continued their appeal in view of Order XXII Rule 2 of the Code. In Paragraph 18 the Hon'ble Supreme Court was pleased to observe that the discretionary power cannot be exercised to nullify the effect of the abatement of the appeal so far as Kedar Nath is concerned. The Hon'ble Court was further pleased to observe that " in fact such an exercise of power will lead to the existence of two contradictory decrees between the heirs of Kedar Nath and the respondents, one passed by the appellate Court and another to the contrary effect by the Court below which has attained finality consequent on the abatement of the appeal in so far as they are concerned. This is always avoided." In paragraph 21 of the said reports the Hon'ble Supreme Court was pleased to hold that " we are, therefore, of opinion that the High Court could not have heard the appeal of the surviving appellants when the appeal by Kedar Nath had abated as all the appellants had a common right and interest in getting a decree of ejectment against defendant No.2 and such decree could have been on a ground common to all of them. The defendant cannot be ejected from the premises when he has a right to remain in occupation of the premises on the basis of the decree holding that Kedar Nath, one of the persons having a joint interest in 17 letting out the property could not have ejected him. It is not possible for the defendant to continue as a tenant of one of the landlords and not as a tenant of the others when all of them had a joint right to eject him or to have him as their tenant." The Hon'ble Supreme Court was pleased to dismiss the appeal before the said Hon'ble Court.
The learned Advocate for the defendant/respondent No.1 has referred to the prayers made in the plaint wherefrom it appears that the plaintiffs have prayed for a decree for declaring the plaintiffs (that is, the four plaintiffs) absolute title in the suit property. The said learned Advocate submitted that in the absence of the heirs and legal representatives of the said Krishno Chandra Jhal, since deceased, such prayer cannot be granted.
The said learned Advocate cited another decision reported at 2006(2) CHN 420 (Dalsinger Singh -V- Dayamoyee Sadhukhan). From a perusal of the said reports it appears that an application for stay of further proceedings of execution case of an eviction decree was the subject-matter of consideration before the Hon'ble Court. The first appeal in the said reports arose out of an ejectment decree. In the said first appeal the defendants/appellants had died and a 18 defective application for substitution was made but inspite of Court's direction such defect was not removed and the appeal stood dismissed. Subsequently, the appeal was restored and the heirs and legal representatives of the deceased original defendant/appellant were substituted. Subsequently, one of the substituted heirs of the deceased appellant, namely, appellant No.1( c ) died and an application for substitution after setting aside the abatement was filed in this regard but the Hon'ble Court dismissed such application upon a contested hearing and in view of such order of dismissal the appeal by the appellant No.1 (c ) stood abated. Thus, the question arose, while hearing the application for stay, whether the appeal as a whole stood abated on the abatement of the appeal in respect of one of the appellants. The Hon'ble Division Bench of this Court was pleased to hold in the said reports that the appeal in the said reports had abated in its entirety.
The learned Advocate appearing on behalf of the appellants submitted that the suit and/or appeal could not have abated as a whole. The said learned Advocate for the appellants cited the decisions reported in AIR 1963 Calcutta 289, AIR 1967 Calcutta 116, 1980(2) CHN 117 and AIR 1970 Patna 384.
19
In AIR 1963 Calcutta 289 (Santosh Kumar Mondal & Ors. -V- Nandalal Chakrapani & Ors.) the facts were that in the Trial Court the plaintiffs succeeded and the suit for title and possession was decreed in their favour. Against such decree the defendants preferred an appeal to the learned Lower Appellate Court (subordinate Judge's).
During the pendency of the said appeal, one of the defendants/appellants, that is, the defendant No.2, died and the heir and legal representative of the deceased appellant was not brought on record. The appeal was, however, allowed in favour of the defendants/appellants. Thereafter, in the second appeal the plaintiffs as appellants took up a preliminary point that on the death of one of the defendants/appellants the appeal must be deem to have abated as a whole in the learned Lower Appellate Court and, therefore, the appellate decree was void. A point was raised to the effect that 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 and all or several of the plaintiffs or defendants appeal against the decree the Court can the appellate Court in view of the provisions of Order 41 Rule 4 C.P.C. proceed with the appeal and reverse the decree of the Trial Court inspite of 20 omission to bring on record heirs of one of the appellants who dies during the pendency of the appeal. Such point was the matter for consideration in the said reports. It will thus appear that the facts of the said reported case were different from the facts of the present case. It appears that the Hon'ble Court was pleased to hold in the said reports that the appeal did not abate as a whole and it was held that the Appellate Court can proceed with the appeal and reverse the decree of the Trial Court inspite of the omission to bring on record the heirs of one of the appellants who dies during the pendency of the appeal.
In AIR 1967 Calcutta 116 ( Abdul Hamid & Ors. -V- Durga Charan Das) the question was: if two of the five appellants die during the pendency of their appeal arising out of a suit instituted by them for recovery of khas possession of a certain plot of land, reckoning the sole defendant as a trespasser thereon, and if the appeal against the two dead appellants abates, no steps having been taken for substitution of their legal representatives, will the appeal as a whole abate? The learned Subordinate Judge concerned before whom the said appeal was pending held that the appeal abated as a whole. The Hon'ble Court in the said reports ultimately held that the order of 21 total abatement of the appeal as held by the learned Judge, cannot be sustained.
It appears that the Hon'ble Court in the said reports had considered the judgment reported at AIR 1963 Calcutta 289 and also the judgment reported at AIR 1963 SC 1901. Paragraph 6 of the said reports, in this case, is quoted below:
"Could I have called in aid Order 41 Rules 4 and 33 as a Full Bench of this Court did in Santosh Kumar Mondal v. Nandalal Chakrapani, decided on August 17, 1962 and come into the reports in May 1963. AIR 1963 Cal 259(FB), my task would have been so much the easier. But in view of the Supreme Court decision in Rameshwar Prasad v. Shambehari Lal Jagnanath, decided on May 3, 1963, and come into the reports in December of the same year: AIR 1963 SC 1901, it is no longer open to me to do so. Once an appeal has been filed by all the appellants (as here), O 41, Rule 4, operating at the institution of the appeal ceases to be available, and O 22, operating during the pendency of the appeal, rules its carriage. The discretionary power O. 41 R 33 invest the appeal Court with, cannot be exercised to nullify the effect of abatement of the appeal against the two deceased appellants (as here). Nor is R. 33 intended to apply 22 to an appeal rendered incompetent against the two deceased appellants by reason of the abatement (also as here). Such is the law laid down by Ragubar Dayal. J., speaking for the Court in Rameshwar's case, AIR 1963 SC 1901 (supra), making the Full Bench decision of this Court, in so far as it goes by O. 41 Rr. 4 and 33, bad law. And on the strength of this very case Mr. Bakshi wants me to reach the same conclusion the learned Subordinate Judge has come to. There, in a second appeal filed by nine plaintiffs, Kedar Nath, the third appellant, died. And no application having been made within the prescribed time for bringing his legal representatives on record, the appeal abated against him in view of the combined effect of Rr. 3 and 12 of O.22. Furthermore, the appeal abated as a whole. Similarity as this appears to be deceptive. Because, that was an action in ejectment against a tenant and a tenant's tenant. Had the litigation in hand been just so, certainly I would have come to the same conclusion. The decree appealed against would have been then joint and indivisible. But the litigation in hand is a litigation by Mahomendan co-owners. Each of whom has a share, specific and certain for eviction of a trespasser. The decree appealed against is not therefore, joint and indivisible. Each co-owner has his separate right 23 on the foot of his or her ascertainable share against such a one: a trespasser. More, the result will not be two inconsistent or contradictory decrees. The abatement of the appeal against the appellants numbering 3 and 4 means that the dismissal of the suit against them by the primary Court has become final and beyond the reach of the appellate Court. Be it so. The decree, if any obtained by the surviving appellants will be a decree for joint possession only, with the trespasser they being at liberty to work out their further rights in proportion to their shares by a suit for partition, without impinging in any way or the primary Court's decree of dismissal against the appellants numbering 3 and 4. Where then is the inconsistency between two decrees - a position which this Court always avoids? Therefore, the Supreme Court decision Mr. Bakshi relies upon appears to be clearly distinguishable. The mark of distinction is this. That decision rests on an action in ejectment against a tenant. The impugned decision in hand rests on an action by Mahomedan co-owners for eviction of a trespasser. The outlook in one cannot be the outlook in another." It will thus appear that the said decision in AIR 1963 Calcutta (FB) cannot be of any assistance to the plaintiffs/appellants. The facts of the said reports, that is, AIR 24 1967 Calcutta 116 are also distinguishable from the facts of the instant case.
In 1980(2) CHN 117 (Jagabandhu Ghosh -V- Ananda Mondal & Ors.) the relevant facts were that the plaintiff No.4 assigned a part of the suit lands in favour of the petitioner before the High Court by a certain deed of gift dated 21.01.1972 during the pendency of the suit and, later, the plaintiff No. 4 died. The said petitioner before the High Court made an application under Order XXII Rule 10 C.P.C. for praying for leave enabling him to continue the suit in his capacity of an assignee. The learned Munsif concerned rejected the said application under Order XXII Rule 10 C.P.C. on the ground that since the suit has abated the question of an assignee having a right to apply under Order XXII Rule 10 C.P.C. in such suit does not arise as there is no suit which may be continued. The Hon'ble Court in the said reports found that the suit had abated so far as the plaintiff No.4 is concerned but the suit did not on that account terminate wholly. It further appears that the period for substitution of the heirs and legal representatives of the plaintiff No.1 had expired at the time when the application under Order XXII Rule 10 was made. The Hon'ble Court held that the right to apply for leave under Order XXII Rule 10 C.P.C. 25 is a pending right which accrues from day to day and cannot therefore be barred by limitation. The facts of the said reports will reveal that the said facts are different from the facts of the instant case and it is difficult to appreciate as to how the said reports could be of any assistance to the plaintiffs/appellants in the instant case.
In AIR 1970 Patna ( Newa Lal Sharma & Ors. -V- Bikku Sharma & Ors) a Single Bench of the said Hon'ble Court was pleased to observe, inter alia, to the effect that there is no substance in the argument for a joint family has to act as a unit and no individual coparcener can maintain a suit for eviction of a trespasser (Paragraph 5 of the said reports). Considering the pleadings of the plaintiffs in the instant case and the case which the plaintiffs have made out in their plaint, this Court is of the view that the said reports cannot come in aid of the plaintiffs/appellants.
Thus, on perusal of the aforesaid reported decisions cited at the Bar and keeping in mind the facts and circumstances of the present case, it appears to this Court that the suit had abated as a whole. The prayer made in the plaint, as already indicated above, was for, inter alia, declaring that the plaintiffs have absolute title in the suit property against the defendants. Therefore, all the four plaintiffs 26 together have sought for declaration without mentioning in the plaint the individual share of each of the plaintiffs in the suit property. In the absence of one of such plaintiffs and/or heirs or legal representatives of such deceased plaintiff it will not be possible for the Court, even if the plaintiffs/appellants succeed on merits, to declare that the remaining three plaintiffs have absolute title to the suit property. The decree that was sought for by the plaintiffs, if it had to be granted, would have been joint and indivisible. No prayer has been made in the plaint for declaring any specific share of each of the plaintiffs. If this Court embarks upon deciding the appeal on its merits and if this Court ultimately finds that the plaintiffs/appellants should be granted a decree declaring their right, title and interest in the suit property then in that that event such decree would only be in favour of their plaintiffs/appellants before this Court whereas the suit as against the plaintiff No.1, that is, Krishna Chandra Jhal, would remain to stand as dismissed. This might result in two inconsistent and contradictory decrees. Such as a situation cannot be permitted to exist. Thus, this Court holds that the suit in the present case had abated as a whole.27
It may be recorded here that the learned Advocates for the respective parties had made their submissions also in respect of their cases on the substantial questions of law as formulated in the instant appeal as quoted above, and had also cited some reported decisions in this regard but in view of the finding of this Court that the suit had abated, this Court is of the view that it would be futile to discuss the said submissions of the learned Advocates for the respective parties on the merits of the appeal.
In view of the discussions made above, the instant appeal is dismissed as the suit had abated as a whole.
The Lower Court Records be sent down to the learned Court below concerned.
There will, however, be no order as to costs.
Urgent Xerox Certified copy of this Judgment, if applied for, be given to the parties on compliance of all necessary formalities.
(TAPAN KUMAR DUTT J.)