Andhra HC (Pre-Telangana)
B.C. Harinarayanamma And Others vs V. Narasimha And Others on 27 April, 2001
Equivalent citations: 2001(4)ALD29, 2001(4)ALT580, 2001 A I H C 3851, (2002) 1 CIVILCOURTC 633, (2001) 1 ANDHWR 101, (2001) 4 ANDH LT 580
Author: Vaman Rao
Bench: Vaman Rao
JUDGMENT
1. Heard both sides.
2. This appeal is directed against the judgment of the District Judge, Ranga Reddy dated 7-6-1993 rendered in AS No.20 of 1991 under which the appeal was allowed and the judgment and decree of the trial Court dated 17-6-1991 in OS No.160 of 1982 on the file of the District Munsif, West and South, R.R. District decreeing the suit was set aside resulting in dismissal of the suit. Thus, the plaintiffs in the suit are the appellants herein and the defendants are the respondents herein.
3. The facts leading to this second appeal may be stated briefly as follows:
The four plaintiffs filed the suit for declaration of the title and recovery of possession of suit schedule property, namely, six acres of land in Survey No.69 of Kondapur village. The trial Court decreed the suit. The defendants filed the appeal in AS No.20 of 1991 before the District Judge, Ranga Reddy. When the appeal came up for hearing before the District Judge on 26-8-1991, a memo was filed by the learned Counsel for the respondents (plaintiffs) that the first respondent (first plaintiff) died on 29-7-1991. However, the appellants (defendants) filed a memo stating that the first respondent in fact died on 2-10-1985 at the Government Hospital, Anantapur.
4. On this basis, it was argued before the first appellate Court that inasmuch as the first respondent (plaintiff No.1) died on 2-10-1985 when the suit was pending in the trial Court and inasmuch as the legal representatives of the deceased plaintiff No.1 were not brought on record, the decree under appeal is a nullity. This contention was countered firstly by stating that there was no material to show that the plaintiff No. 1 died on 2-10-1985 during the pendency of the suit.
5. The alternative contention was that even assuming that the first plaintiff died during the pendency of the suit, since the other respondents plaintiff's being co-owners could continue the suit in their own names.
6. The first appellate Court examined the question as to the date of death of the first plaintiff and on the basis of material available on record held that the first plaintiff died in fact on 2-10-1985 i.e., during the pendency of the suit itself and on this basis relying on various authorities cited above him, the learned District Judge held that the decree under appeal before him was a nullity. It may be mentioned that in this appeal, the appellants proceed on the basis that plaintiff No.1 died on 2-10-1985.
7. The learned District Judge also held that there was no question of permitting the plaintiff's to bring the legal representatives of the deceased first plaintiff on record in the appeal as the appeal itself was incompetent having been filed against a decree which was nullity and accordingly allowed the appeal dismissing the suit as having abated. It is this judgment, which is now challenged in this appeal.
8. The question that arises for consideration in this appeal is whether inasmuch as the plaintiffs are the co-owners of the suit property, whether failure to bring on record the legal representatives of the deceased plaintiff No.1 who died during the pendency of the suit would have the effect of abating entire suit as against the surviving plaintiff's also.
9. The contention of the learned Counsel for the appellant is that inasmuch as the plaintiffs are the joint owners of the property having purchased the same jointly from defendant No.l under a registered sale deed, one co-owner represents all the co-owners in relation to the property. The contention is that inasmuch as all the co-owners have joined in the suit as plaintiff, death of one of the co-owners does not abate the suit as a whole and that the right to sue survives solely in favour of the surviving co-owners.
10. The learned senior Counsel Sri J. V. Suryanarayana advanced very extensive and elaborate arguments as to the nature of the rights involved in the joint tenancy and tenancy in common quoting from Sir 'Robert Megary on Real Property'. The learned senior Counsel contended that interest of each joint tenant is to the same extent nature and duration and that in the law their interests constitute one estate. Thus, the contention is that death of plaintiff No. 1 and failure to bring on record the legal representatives of plaintiff No.1 does not result in abatement of the suit as a whole and that the surviving plaintiffs can continue the suit.
11. The learned Counsel for the respondent, Sri Vilas Afzulpurkar on the other hand submits citing several judgments of the Supreme Court that inasmuch as the rights claimed by the co-owners are common and the relief sought against the defendants in respect of declaration of title and recovery of possession is based under same title, after the death of one of the plaintiff co-owner in the absence of his legal representatives, the suit as such abates and in this case inasmuch the suit of the plaintiff was decreed, after the death of one of the plaintiffs during the pendency of the suit and as legal representatives of the deceased plaintiff were not brought on record, the decree passed by the trial Court is a nullity as the suit in its entirety abated.
12. For the purpose of this appeal, it is not necessary to go into the theoretical basis of the rights under joint tenancy and tenancy in common on which the learned senior Counsel Sri J. V. Suryanarayana has shed light with great lucidity and thoroughness.
13. It may be mentioned that the question involved in this appeal is covered by the Judgment of the Supreme Court. It is now necessary to advert to various decisions cited by the learned Counsel for the appellants and respondents respectively.
14. The learned Counsel for the appellants Sri J. V. Suryanarayana seeks to rely on the judgment of Orissa High Court in the case of Gumbari v. Dulani, AIR 1971 Ori. 147. In this case, it was held that a suit instituted on behalf of deity by all the joint 'marfatdars' would not abate on the death of one of the marftdars. The Court held "the legal position that emerges out of the discussion can now be stated thus. A deity is entitled to sue and be sued in law. Normally the deity has to be represented by the entire body of shebaits, but a suit by some of the shebaits, if it is in the interests of the deity, can be maintained in certain special circumstances. If the suit at its inception had been properly constituted by the deity being represented by all the she baits, there can be no abatement particularly because the consent of all shebaits to the institution of the suit can be presumed from the fact that they had all come to represent the deity when the suit was filed. It is open to the plaintiff, if dispute is raised about maintainability of the suit on the ground that all shebaits had not been impleaded to represent the deity, to prove that the suit as filed was with the consent or approval of all and if the Court is satisfied that the claim made in the suit is with the consent of all, the suit must be held to be perfectly in order. As to whether the deity is represented by some of its shebaits in the final analysis is a mere question of procedure and expediency and is meant more to protect the interest of the shebaits than of the deity itself.
15. Thus, this case is entirely distinguishable. Here the suit was on behalf of the deity. The requirement that all shebaits should join in instituting the suit is as held by the learned Judge to protect the interest of the shebaits and not of the deity. It was in this background that the Orissa High Court held that failure to bring on record the legal representatives of the one of the joint marftdars representing the deity does not have the effect of abatement of the suit as a whole.
16. The learned senior Counsel Sri J, V. Swyanarayana then relies, on the judgment of a Full Bench of Patna High Court in the case of RN. Das v. Lok Nath Mandal, . It has been held in this case that a co-owner alone can institute a suit for recovery of possession of land held by him along with other persons against a trespasser who dispossessed all the co-owners and can obtain a decree for recovery of possession of the entire area.
17. Yet another Division Bench judgment of Patna High Court relied upon by the learned senior Counsel is the case of Johan Uraon v. Sitaram Rao, . It has been held in this case that a suit by one of the joint owners to obtain possession by ejecting the trespasser is maintainable even though the other joint owners are not impleaded as parties to the action. It was further held that if one of the plaintiffs who are the joint owners died, the right to sue in fact survives to the other plaintiffs or the other appellants/ respondents as the case may be and as such there is no question of abatement of the entire appeal.
18. The learned senior Counsel Sri J. V. Swyanarayana also cites a judgment of this Court in the case of Meka Chinnappa Reddy and another v. Meka Pulla Reddy, , which was rendered by me. The facts of this case were that plaintiffs 1 and 2, who were the co-owners filed the suit against the defendants for perpetual injunction. The plaintiff No.1 died during the pendency of the proceedings. The suit abated in respect of the plaintiff No.1 as no steps were taken for bringing the legal representatives on record. The question that arose for consideration was whether in the absence of the legal representatives of plaintiff No.2, the suit as a whole abated. It has been held that the entire suit as such did not abate.
19. The question that was considered in the above case was whether considering the nature of the suit including the nature of the right in the property, nature of the infringement of the right of plaintiff alleged and the nature of the relief claimed under the circumstances of the particular case, right to sue can be said to survive on the death of plaintiff in favour of surviving plaintiff alone within the meaning of Order 22, Rule 2 of CPC, or whether such a right to sue does not survive against the surviving plaintiff alone and whether on the failure to bring on record the legal representatives of the deceased plaintiff under Order 22 Rule 3(1) of CPC, the suit abates as contemplated under sub-rule (2) of Rule 3 of Order 22 of CPC.
20. It has been held by me that:
'the death of the 2nd plaintiff does not affect the right of the surviving plaintiff to protect his possession over the suit property by seeking to restrain the defendants from interfering with his possession over the suit property by filing the suit. The plaintiff, who is in possession of property, has a right to protect his possession and seek injunction against the defendants, who seek to . interfere with his possession. This right in no way is dependent on or diluted by the fact that the surviving plaintiff was in possession of the property in question as co-owner along with the deceased plaintiff. The obligation of the defendants not to interfere with the possession of the surviving plaintiff over the suit property is in no way affected or obliterated by the mere fact that the deceased plaintiff was also in joint possession along with the surviving plaintiff over the suit property. If several co-owners are in possession of the property, every co-owner has an independent and parallel right to protect his possession over the suit property and to sue against the potential trespassers. This right is not contingent or conditional on its simultaneous or conjoint exercise by all the co-owners, in view of this, it has to be held that in a suit for injunction filed by co-owners to protect their possession, in the event of death of one of the plaintiffs, the right to sue survives to the surviving plaintiff or plaintiffs.
21. This view was based on the facts of the particular case inasmuch as the relief sought by the surviving co-owner was an injunction restraining the defendants not to interfere with his possession over the joint property of the co-owners.
22. The learned Counsel also relies on the judgment of Patna High Court in the case of Sahdeo Singh v. Ramchhabila Singh, , a learned single Judge of Patna High Court held that where during the pendency of a suit by co-owners for declaration of title and possession against trespassers, one of the co-owners dies the suit will not abate for non-substitution of his legal representatives for the reason that the suit is maintainable even by some of the co-owners.
23. In this case, it is pertinent to mention that the suit is for declaration of title and for recovery of possession of the suit land from the defendants. In view of this, it is obvious that if the suit against one of the plaintiffs, who is a co-owner stands dismissed by abatement due to the death of the said co-owner and if the suit is decreed for declaration of title and possession in favour of the surviving co-owners, it leads to conflict of judgments.
24. On the other hand, the learned Counsel for the respondents, Sri Vilas Afzulpurkar relies on various judgments of the Supreme Court and other High Courts in support of his contention that the appeal as a whole abates due to non-brining of the legal representatives of the deceased plaintiff and the judgment of the first appellate Court treating the decree as nullity because of failure to bring on record the deceased plaintiff's is absolutely justified and he relies on the following judgments in support of his contention.
25. In support of his contention, he relies on a judgment of the Supreme Court in the case of State of Punjab v Nathu Ram, , certain land pertaining to two brothers was acquired for military purposes and on their refusal to accept the compensation offered by the Collector, the State Government referred the matter for enquiry to an arbitrator under Rule 10 of Punjab Land Acquisition (Defence of India) Rules 1943. The arbitrator passed a joint award granting a higher compensation and also certain sum on account of income tax. The State Government appealed against the award to the High Court. During the pendency of the appeal, one of the joint owners died and as his legal representatives were not brought on record, the appeal abated against him. The question was whether the appeal had also abated against the other joint owner. It was held that the appeal against the surviving joint owner could not proceed. In this case, the Supreme Court laid down certain tests as to whether the death of one of the parties to the suit leads to the abatement of the entire suit. It has been held that the Courts will not proceed with an appeal (a) when the success of the appeal may lead to the Courts coming to a decision which will be in conflict with the decision between the appellant and the deceased respondent and therefore it would lead to the Courts passing a decree which will be contradictory to the decree which had become final with respect to the same subject matter between the appellant and the deceased respondent; (b) When the appellant could not have brought the action for the necessary reliefs against those respondents alone who were still before the Court and (c) when the decree against the surviving respondents, if the appeal succeeds will be ineffective, that is to say, it could not be successfully executed.
26. It has further been held 'the difficulty arises always when there is a joint decree. Here again, the consensus of opinion is that if the decree is joint and indivisible, the appeal against the other respondents also will not be proceeded with and will have to be dismissed as a result of the abatement of the appeal against the deceased-respondent'.
27. Taking this view, the Supreme Court held that the said appeal against the enhancement of compensation by the arbitrator in view of the death of one of the claimants could not be proceeded with.
28. In the case of R.P. Gupta v. Murli Prasad, , the Supreme Court reiterated the above cited view and held that in an appeal against the decree for dissolution of partnership, if one of the partners appellants died, the appeal as a whole abates. The Supreme Court reiterated the three tests mentioned above and further held that these tests are not cumulative and even if one of them is satisfied, the Court may dismiss the appeal.
29. In the case of Madhavji v. Trikamdas, , the Gujarat High Court held that in a suit for dissolution of partnership, all the parties are necessary parties and failure to bring the representatives of the deceased parties on record in appeal results in abatement of the appeal as a whole.
30. A Division Bench of this Court in the case of K Basavamma v. N. Mahalakshnaiah, 1992 (1) APLJ 430, following the judgment of the Supreme Court in the case of State of Punjab v. Nuthu Ram (supra) held that when one of the respondents in appeal dies and his legal representatives are not brought on record, the appeal abates in entirety and it cannot be proceeded against others.
31. Another Division Bench of this Court in the case of Mohd. Safdar Shareef (died) per LRs. v. Mohammed Ali (died) Per LRs., , held that an appeal will abate as a whole if the case is of such a nature that the appeal cannot be proceeded in the absence of the legal representatives of the deceased. It has been observed that the basis of this rule is, to decide an appeal without bringing the legal representatives on record in the case of that nature, will produce two inconsistent and contradictory decree in the same litigation with respect of the same subject-matter. It is pertinent to mention here that the facts of this case before the Division Bench would disclose that a common decree for possession and profits was sought for against all the defendants. It was, therefore, held that the decree in question was joint and indivisible. It was noted that even according to the averments in the written statement the defendants contend that they were jointly in possession and enjoyment of the site. In view of these facts, the Division Bench held that it is clear that any decree that may be passed against some of the defendants would be inconsistent with the decree of dismissal of the suit in respect of other defendants. Therefore, the appeal before the learned single Judge has abated.
32. Thus, it would be seen that in the judgments of the Patna High Court in the cases of R.N. Das v. Lok Nath Mandal (supra), Johan Uraon v. Sitaram Rao (supra), Sahdeo Singh v. Ramchhabila Singh (supra) and of this Court in the case of Meka Chinnappa Reddy (supra) rendered by me, the facts were distinctly different. Particularly in the case of Meka Chinnappa Reddy (supra) the suit was for mere injunction on the ground that the defendants were trespassers and were interfering with the possession of plaintiffs. Even in the absence of legal representatives of one of the plaintiffs, the decree in favour of surviving plaintiff for injunction would not result in any conflict of decisions or contradictory findings. Further, such a decree cannot be said to be inexecutable. But the facts of this case before me would disclose that it is a suit for declaration of title and for recovery of possession of the suit land from the defendants. The principle laid down by the judgment of the Supreme Court referred to above squarely applies to the facts of this case.
33. It may, however, be mentioned that on behalf of the appellants, a petition for setting aside the abatement of the suit and a petition for bringing the legal representatives of the deceased plaintiff No.1 on record along with a petition for condonation of delay in filing the petition have been filed. The petition for condoning the delay has been dismissed separately.
34. In the result, there is no escape from holding that failure to bring on record the legal representatives of the deceased-appellant would result in abatement of the suit in its entirety inasmuch as the trial Court has passed the decree in the absence of the legal representatives of one of the plaintiffs. The decree was a nullity and the learned District Judge rightly held so. In the result, the appeal deserves to be and is hereby dismissed. No costs.