Patna High Court
Maharaja Bahadur Kesho Prasad Singh vs Muhammad Wahid on 9 August, 1929
Equivalent citations: 128IND. CAS.119, AIR 1931 PATNA 17
JUDGMENT Fazl Ali, J.
1. These two appeals arise out of two suits (No. 102 of 1919 and No. 43 of 1920) which were instituted in the Court of the Second Subordinate Judge at Arrab. It appears that the plaintiff-appellant is the proprietor of two village, namely, Narainpur Bison and Dubouli Mohesh. To the south of these villages lies another village named Kazipur which belongs to a number of persons who were impleaded in the suit as defendants first party. The main relief prayed for in Suit No. 43 of 1920 was that it be declared that certain lands appertained to village Dubouli and not to village Kazipur; the area of these lands was said to be 7 bighas 17 kathas and 15 dhurs. Similarly the plaintiff prayed for a declaration in Suit No. 102 of 1919 that 7 bighas 18 kathas and 8 dhurs of land appertained to village Narainpur Bisen and not to village Kazipur. It was common ground that the lands in suit were not in khas possession either of the plaintiffs or the proprietors of Kazipur but they were cultivated through a number of tenants. The tenants through whom the plaintiffs claimed to be in possession were impleaded in the suits as defendants third party, whereas the tenants through whom the maliks of Kazipur claimed to be in possession were impleaded as defendants second party.
2. The learned Subordinate Judge who tried the suits dismissed them in toto, his finding that the plaintiff had not succeeded in proving that the lands appertained to his village and also that the plaintiff had failed to prove that he was in possession of the lands in dispute within 12 years of the suit. The judgment of the trial Court was affirmed in appeal by the District Judge of Arrah who distinctly found that the plaintiff had failed to prove his possession within 12 years of the suit, although there seems to be no clear finding in his judgment on the question of title.
3. Now, the present appeals were argued before us with great clearness and ability by Mr. Sundar Lal, the Advocate for the appellant, who assailed the judgment of the Courts below mainly on the ground that they had ignored the fact that in the year 1910 there was a decision given by the Superintendent of Survey in favour of the plaintiff which under Section 41 of the Bengal Survey Act (Bengal Act V of 1875) had the force of a Civil Court decree; and, this being so, it was contended that it should have been presumed by the Courts below that at least in the year 1910 the plaintiff was in possession of the lands in dispute. It appears to me, however, that it is not necessary to deal with this argument of the learned' Advocate, because a preliminary point has been raised in this case which seems to be fatal to these appeals; the point being that both the original suits and the appeals have abated long ago. In order to appreciate this point it will be necessary to refer to a few facts. As I have already said, there were sets of defendants in these suits among which no less than 42 persons were impleaded as being proprietors of Kazipur and a large number of persons were impleaded either as tenants under the plaintiff or under defendants first party. It appears, however, from the judgment of the trial Court that a number of defendants had died during the pendency of the suit and no steps were taken on behalf of the plaintiff to substitute their heirs. One of the questions which thus arose before the trial Court was whether the suits had abated as a whole or only against the defendants who had died. The learned Subordinate Judge was of opinion that it was not necessary to decide the point as the suits failed on merits; but he added that if he was required to answer the point, he would hold that the suits had abated as a whole. The point seems to have been again agitated before the lower Appellate Court and so far as it appears from its judgment no satisfactory answer was furnished by the plaintiff before that Court. Some of the defendants again seem to have died after the appeals were filed in this Court and the plaintiff was still negligent with the result that a note was made in the order-sheet that the Court's order dated the 22nd November, 1926, not having been complied with, the Second Appeal No. 848 had abated and stood dismissed against respondents Nos. 1 to 11, 14 to 19, 21 to 42, 46 to 48, 52 and 56 and the Second Appeal No. 849 had abated and stood dismissed as against respondents Nos. 1 to 11, 14 to 46, 55 to 58, 69 and 99.
4. Thus the preliminary question to be determined in these appeals is what would be the effect of the abatement on the suits as well as the appeals. As I have already said, the learned Subordinate Judge who tried the suits was of opinion that the suits had abated as a whole and having regard to the circumstances of the case, I entirely agree with him in this opinion. The plaints filed in the case show that the principal relief claimed in the suits was as follows:
It may be adjudicated that the disputed lands are in Mauza Narayanpur Bisen, Pargana Bhojpur, the proprietary interest of this plaintiff and that he continues to be and is in possession of the same through the defendants, 3rd party.
5. Now, it appears to be quite plain that when a declaration was sought to the effect that certain lands appertained to the plaintiff's village and not to another village, it would not be a properly constituted suit unless all the proprietors of the other village are impleaded; and, if the suit or the appeal abated in consequence of some of the proprietors having died and their heirs not having been substituted in time, it is clear that the suit or the appeal, as the case may be, must be deemed to have abated as a whole. It is to be remembered, as the learned Subordinate Judge has pointed out, that the declarations in the suit were prayed against the whole body of the defendants. It is also to be considered that there is nothing before us to show what area of the land was held or was being alleged to have been held by the tenants of the defendants second party or the third party, some of whom also are said to have been dead. This being so, the negligence of the plaintiff in substituting the heirs of the deceased defendants and respondents has created a situation of great complication and it is impossible in the present state of the record, even if we were inclined to pass a proper decree in favour of the plaintiff, to pass a proper decree against the surviving defendants or the respondents. The position is so clear that it does not, in my opinion, require to be supported by any authority. If, however, any authority is needed for the proposition it will be found in the case of Sri Kanta Mandal v. Jetirmoyi Devi 94 Ind. Cas. 253 where it was held that where a claim is not divisible and where in appeal the legal representatives of the deceased respondents are not brought on the record, the appeal abates in its entirety. Again, as was pointed out in Sheo Chand Misra v. Sita Ram Misra 100 Ind. Cas. 482 : A.I.R. 1927 All. 331 "The test to determine whether or not the failure to bring upon the record the heirs of one of several respondents, who has died, has the effect of causing an abatement of the entire appeal or qua that particular respondent alone is as to whether or not the appeal can be decided without, as a result of that decision, bringing into existence two decrees contrary to each other. If the result of hearing and deciding the appeal would be to bring into existence two decrees of Courts of competent jurisdiction contrary to each other, the appeal must abate as a whole."
6. As I have already pointed out here the appeals are liable to be dismissed as against the majority of the proprietors and the result that follows is that, at least so far as they are concerned, the lands in suit will be deemed to be situated in village Kazipur. This being so, even if we were inclined to see any merit in these appeals, we would be constrained to pass an entirely contrary decree so far as the remaining proprietors are concerned, virtually holding as against them that the very same lands are situated in the village of the plaintiff and not in Kazipur. It is clear that when a situation like this has been created, it must be held that the appeals have abated as a whole and are, therefore, liable to be dismissed with costs.
Dhavle, J.
7. I agree.