Patna High Court
Sahdeo Singh And Ors. vs Ramchhabila Singh And Ors. on 15 February, 1978
Equivalent citations: AIR1978PAT258, 1978(26)BLJR153, AIR 1978 PATNA 258
ORDER Birendra Prasad Sinha, J.
1. This application by the defendants is against an order, dated the 2ist July, 1977, passed by the court below, holding that the suit did not abate on account of the non-substitution of the heirs and legal representatives of the deceased plaintiff No. 5.
2. The plaintiffs, eleven in number, filed a suit for declaration of their title and confirmation of possession or, in the alternative, recovery of possession over the suit land. The plaintiffs have also prayed that the re visional survey records should be corrected. Their case, inter alia, is that the lands appertaining to Khasra No. 222, Khata No. 94, area 1 bigha, 12 kathas, 15 dhurs, situate in village Rampur Kumharkol, belonged to one Rakat Singh, plaintiffs' ancestor. It was re corded in the name of the said Rakat Singh in the cadestral survey. In the new revi-sional survey the land was re-numbered. Rakat Singh remained in possession of the land during his lifetime and after his death, his sons Kodai Singh and Julumdhari Singh came in joint possession. Kodai died leaving behind two sons, Shahi Narain Singh and Ram Bahadur Singh. The latter died issue-less. Shahi Narain Singh left behind two sons, Ramchhabila and Jalesar. Ramchhabila and his five sons are plaintiffs Nos. 1 and 6 to 10. The widow of Jalesar is plaintiff No. 2, Julumdhari Singh died leaving behind a son Nageshwar Singh. Nageshwar Singh left behind three sons, Akhileshwar Singh, Ashok Kumar Singh and Dilip Kumar Singh. Ashok Kumar Singh and Dilip Kumar Singh were made plaintiffs Nos. 4 and 5 and the widow of Akhilashwar Singh, Mt. Urmila Devi, was made plaintiff No. 3. It was alleged that the land in dispute belonged to all the plaintiffs and, because the cause of action was the same, the plaintiffs jointly filed the suit. The defendants belonged to different families who got a survey entry made illegally in their favour by bringing the Amin and others in collusion in respect of the plaintiffs, land to the extent of eight kathas. Hence the suit for declaration of title and confirmation of possession or, in the alternative, recovery of possession, and also for correction of the survey records.
3. One of the plaintiffs, Dilip Kumar Singh (plaintiff No. 5), died during the pendency of the suit. On the 27th June, 1977, the defendants filed an application stating, inter alia, that plaintiff Dilip Kumar Singh had left behind his mother as his heir and legal representative and since no application for substitution had been filed, the suit had abated and should be dismissed. The plaintiffs filed a rejoinder. According to them, Nageshwar Singh had two marriages. Akhileshwar Singh and Dilip Kumar Singh were born of the first marriage and Ashok Kumar Singh was born of the second marriage. The living wife of Nageshwar Singh is the mother of Ashok Kumar Singh. Since both, father and mother of Dilip Kumar Singh are dead, his step-brother Ashok Kumar Singh (plaintiff No. 4) was the legal heir and representative of Dilip Kumar Singh. Some evidence was led on this question by the parties. The learned Munsif recorded a finding that Nageshwar Singh had only one marriage and the widow of Nageshwar Singh is the own mother of Dilip Kumar Singh (plaintiff No. 5). However, he held that since the suit had been filed in a representative capacity by the Karta of different branches, it did not abate. It may be relevant here to state that in paragraph one of the plaint it is stated that plaintiffs Nos. 1, 2 and 3 are Kartas of their respective branches and were filing the suit in their representative capacity. It is the admitted position that no application for substitution was filed on behalf of the plaintiffs.
4. Shri Shiva Kirti Singh, learned Counsel appearing for the petitioners, contended that as the plaintiffs had failed to substitute the mother of deceased plaintiff No. 5, the suit had become incompetent. On the other hand, learned Counsel appearing for the plaintiffs-opposite party submitted that since the suit was filed in a representative capacity by Kartas of the different Branches, the same cannot be said to have abated.
5. The question is whether the widow of Akhileshwar Singh (plaintiff No. 3) could be a Karta of the joint Hindu family under the Hindu law. Coparcenarship is a necessary qualification for the managership of a joint Hindu family and a widow is, admittedly, not a coparcener. She, therefore, cannot become a Karta in a joint Hindu family. A mother can become the guardian of her minor sons but the law never treated her as a coparcener and, therefore, she could not become the Manager or the Karta of the joint family. As such, plaintiff No. 3 could not represent the interests of the deceased plaintiff No. 5. Learned Counsel for the plaintiffs-opposite party relied upon a decision of this Court in Prasad Gope v. Makhan Gope (AIR 1969 Pat 307) (sic) (Ram Kawal Upadhaya v. Dudbanath Pandey, AIR 1961 Pat 317?) It appears that the decision of the Supreme Court in Commissioner of Income-tax, Madhya Pradesh v. Seth Govindram Sugar Mills (AIR 1966 SC 24) was not brought to the notice of the learned Judge who decided the case of Prasad Gope (sic) (supra). It has been held by the Supreme Court in that case that a widow cannot become a Karta of a joint Hindu family. It is, therefore, not possible to place reliance on the decision of this Court in Prasad Gope's case (sic) (supra). Besides this, if all the co-owners were made parties to the suit, the question of representation through the Karta would not arise. If a junior member was impleaded in the suit by name, there could be no question of his representation through his natural guardian or the Karta. It is, therefore, manifest that the interest of the mother of deceased plaintiff No. 5 cannot be said to be represented by the remaining plaintiffs.
6. The real question, however, is as to whether on the death of one of the plaintiffs during the trial of the suit, and in the event of his heirs and legal representatives not being substituted and brought on record, the suit will abate ? Shri Shiva Kirti Singh relied upon various decisions of the Supreme Court including State of Punjab v. Nathu Ram (AIR 1962 SC 89); Ram Sarup v. Munshi (AIR 1963 SC 553); Rameshwar Prasad v. Shambehari Lal Jagannath (AIR 1963 SC 1901); Srichand v. Jagdish Prasad Kishan Chand (AIR 1966 SC 1427); Ramagya Prasad Gupta v. Murli Prasad (AIR 1972 SC 1181) and Munshi Singh v. Babu Lal Singh (1976 BBCJ 417) : (AIR 1977 Pat 29). All these cases deal with the situation in an appeal where one of the appellants died. The principle which has been laid down is that if in respect of the deceased appellants the appeal has abated and the decree in favour of the respondents had become final against his legal representatives, the appellate court had no power to proceed with the appeal and to reverse and vary the decree. If the decree is a joint one, the whole appeal abates. In the case of the State of Punjab (Supra), it was held that the courts would not proceed with an appeal when the success of the appeal may lead to the court's passing a decree which would be contradictory to the decree which had become final with respect to the same subject matter between the appellants and the deceased respondent; it was further held that when the decree against the surviving respondents (if the appeal succeeds) will be ineffective, the court cannot proceed with the appeal. The situation when a party died when the suit was in the trial court, and the heirs were not substituted, is entirely different. It has been the consistent view of this Court that if a co-owner instituted a suit for recovery of possession of the land held by him along with other persons against a trespasser, who dispossessed the co-owners, he could obtain a decree for recovery of possession of the entire area. Such a suit will be maintainable, even without impleading the other co-sharers. In the case of Ram Niranjan Das v. Loknath Mandal (AIR 1970 Pat 1 FB), it was held that a possessory title when confronted with a better title will yield place to the better title which must prevail over trespasser's possessory title pure and simple. A co-sharer having an interest in the property jointly with others is apparently a person with better title than a trespasser. It was well settled that one of the various co-owners of a property, if in possession will be deemed to be in possession on behalf of all co-owners and his possession would not be regarded as adverse to other co-owners unless there was distinct proof of ouster. The interest of an undivided co-owner or co-sharer must be taken to cover every inch of land which may be the subject matter of dispute as belonging to the co-owners. In such a situation, a co-sharer's suit must be held to be maintainable without impleading other co-sharers. In Johan Uraon (Ekka) v. Sitaram Sao (Bhagat) AIR 1964 Pat 31 a Bench of this Court held that a suit by one of the joint owners to obtain possession by ejecting a trespasser is maintainable even though the other joint owners are not impleaded as parties to the action. When one of the plaintiffs, who were joint owners, dies, the right to sue survives in the other plaintiffs and, in such a case, there was no question of abatement.
7. In the present case, the suit having been filed by the joint owners against a trespasser can surely proceed even when the heirs of one of the joint owners has not been brought on record in the event of the latter's death. The contention of learned Counsel appearing for the petitioners that the suit has abated must, therefore, be overruled.
8. In the result, this application is dismissed but without costs.