Patna High Court
Janak Sahu And Ors. vs Anant Jha And Ors. on 17 December, 1956
Equivalent citations: AIR1958PAT8, AIR 1958 PATNA 8
JUDGMENT Kanhaiya Singh, J.
1. Kishun Tatwa, respondent No. 6, died during the pendency of this appeal, and his heirs and legal representatives, namely, Musmmat Gungia, his widow and Banwari Tatwa and Jugeshwar Tatwa, his two sons, were substituted in his place. Since, however, the appellants failed to take steps for service of notice on the substituted heirs of the deceased respondent, by virtue of the order of this Court dated 6-9-50, this appeal abated, and was dismissed against the substituted heirs on 20-9-50 nOW the question is whether this abatement against the heirs of one of the respondents involves the abatement of the entire appeal. Mr. Lalnarayan Sinha appearing for the respondents contended that the entire appeal had abated, while Mr. A.K. Sinha representing the appellants contended that the appeal did not abate as a whole but only against the beirs of the deceased respondent.
2. In order to appreciate their argument it will be necessary to state a few facts. In 1934 the Darbhanga Raj, defendant third-party instituted against the plaintiff a rent suit, being Rent Suit No. 1583 of 1934, for recovery of arrears of rent for four years, from 1338 to 1341 Fasli, in respect of a holding of 8 bighas 6 kathas 14 dhurs. The plaintiff was then a minor and was sued through his next friend and guardian Badri Jha. He did not appear and the Court appointed Sri Sobha Kant Misser, Pleader, as guardian-ad-litem.
The suit was decreed ex parte on 25-4-35. In due course the Darbhanga Raj levied execution, and in the execution proceeding Badri Jha, and not the guardian-ad-litem Sri Sobha Kant Misser, was appointed as his guardian. The holding was advertised for sale and was eventually purchased at an auction by the Darbhanga Raj on 8-8-36 the sale was confirmed on 12-9-36. The Darbhanga Raj obtained delivery of possession in 1937, The plaintiff applied under Order 21, rule 90, for setting aside this sale on the ground of fraud and suppression of the processes and consequent injury.
This application was registered as Miscellaneous Case No. 514 of 1937 and was dismissed on 7-5-38. The Darbhanga Raj settled the disputed land with defendant no. 1 at an annual rental of Rs. 34/14/- in July, 1938. On 6-9-40 defendant No. 1 sold 6 bighas 5 kathas 10 dhurs of the suit lands to defendants nos. 2 to 4 by a registered instrument. Defendants nos. 2 to 4 transferred some portions of the land purchased by them to defendants nos. 5 to 9 for residential purposes who built structures thereon. The plaintiff attained majority on the 23rd day of Baisakh 1352 Fasli, corresponding to May or June, 1945 and instituted the present suit on 22-2-47 for possession of the disputed land.
He impugned the decree as a nullity on the ground that he was not legally and properly represented and that all the processes were fraudulently suppressed. He also challenged the sale as void because it was based upon a decree which was null and void and was also vitiated by fraud and clandestine service of the processes. The defence was that the decree was a good decree and the sale was legal, that all the processes were properly served, that the plaintiff was properly represented and that he was acquainted with the facts from the very beginning. The trial court found both the decree and the sale vo'd and illegal and decreed the plain-tiff's suit for possession with costs and mesne profits on contest against the defendants first and third parties and ex parte against the defendant second-party. Defendants nos. 1 to 4 went in appeal to the District Judge, and to appellate court affirmed the decree of the Court of first instance and dismissed the appeal with costs.
3. The defendants who were appellants in the court below, namely, defendants nos, 1 to 4, have preferred this Second Appeal against the judgment and decree of the appellate Court. Defendants nos. 5 to 9 who are transferees of portions of the disputed land from defendants nos. 2 to 4 did not contest the suit at any stage.
4. It will appear from the above that in consequence of the abatement of the appeal against Musammat Gungia, Banwar Tatwa and Jugeshwar Tatwa the decrees of the Courts below have become final against them. In other words, so far as they are concerned, both the decree and the auction sale are null and void and of no legal effect. If the appeal is eventually allowed the decrees of the courts below will be set aside as against the appellants which will amount to saying that the decree and the auction sale were legal, valid and operative.
This will give rise to a wholly inconsistent position and eventually the decrees will be inconsistent. The criterion to determine whether the entire appeal will abate in view of the abatement of the appeal against some of the appellants, has been laid down by this Court in the case of Apurba Krishna v. Ram Bahadur, AIR 1936 Pat 191 (A). The test to be applied is whether in the event of the appeal being allowed as against the remaining respondents there would or would not be contradictory decrees in the same litigation with respect to the same subject-matter.
The principles laid down therein were followed subsequently in the cases of Kali v. Tulshi, ILR 32 Pat 795: (AIR 1954 Pat 49) (B), Dhanukha v. Saudagar, ILR 32 Pat 1003: (AIR 1955 Pat 240) (C) and Ramdhari v. Rambharosa, ILR 32 Pat 1138: (AIR 1955 Pat 237) (D). In the last mentioned case it was held that it was not permissible to allow the existence of conflicting decrees and the appeal must be dismissed as a whole if the success of the appeal would bring into existence conflicting decrees. I think in this case it will be wholly inconsistent to call the same decree and sale as void against some and as legal against the rest. In view of these decisions, the contentions of Mr. Sinha must be upheld, and it must be held that the entire appeal has abated. The appeal is accordingly dismissed but without costs.