Andhra HC (Pre-Telangana)
Dasari Durgamma And Anr. vs Dasari Gangisetti And Ors. on 18 September, 1997
Equivalent citations: 1998(2)ALD492, 1998(2)ALT298
ORDER
1. This Civil Revision Petition is filed against the order in I. ANo.489 of 1990 in A.S.No.29 of 1988 on the file of the Subordinate Judge, Amalapuram. The said appeal suit was filed against the judgment in O.S.No.9 to 1983 on the file of the District Munsif, Mummidivaram. The Plaintiffs 1 and 2 in the original suit are the petitioners in the present revision petition.
2. The suit was originally filed in the trial Court for the relief of injunction restraining the defendants from interfering with the possession of the plaint schedule lands. Later on the relief of 'declaration of title' was also added in the plaint. The suit was dismissed having held that there are some discrepancies in the plaint schedule properties. Aggrieved by the same, the plaintiffs preferred an appeal in A.S.No.29 of 1988 in the Court of Subordinate Judge, Amalapuram.
3. The appeal was filed in the appellate court on 4-4-1988. The appeal suit was disposed of on 5-4-1990 decreeing the suit of the plaintiff. The first plaintiff died on 22-4-1990. On 19-7-1988 the second appellant filed a memo requesting the court to recognise the second appellant - second plaintiff as legal representative of the deceased first appellant-first plaintiff However, no orders were passed on the said memo since by mistake it was not posted before the Court. Thereafter the appeal was disposed of on 5-4-1990. Even on the date of disposal of the appeal by the appellate Court on 5-4-1990, it did not notice the memo filed by the second appellant to recognise her as the legal heir of the first appellant, with the result no orders were passed on the memo filed on 19-7-1988. Therefore after disposal of the appeal the second appellant filed I.A.No.489/90 out of which the present revision is filed, to amend the judgment as well as the decree under Sections 152 and 153 of Civil Procedure Code. The learned Judge dismissed the aaid interlocutory application on the ground that there is no mistake or error committed and therefore the question of correcting the same under Sections 152 and 153 Civil Procedure Code does not arise.
4. The learned Counsel for the respondents contended that the first appellant died on 14-12-1987 i.e. even before the appeal was filed. Therefore he contends that the appeal was filed by a xxx dead person. However they could not substantiate that the first appellant died before filing of the appeal suit. The learned Judge has neither rejected nor accepted their contention. But the fact remains that there was no evidence produced by the defendants that the Appellant No.l died prior to the filing of the appeal. Aggrieved by the order of dismissal passed in the said I. ANo. 489/90 the present revision is filed.
5. The main argument of the Counsel for the respondent is that the first appellant died before filing of the appeal on 14-12-1987 while the appeal was preferred on 4-4-1988. Therefore he contends that since the appeal was filed by dead person it is not maintainable. He also contended that the second appellant cannot continue the proceedings as legal heir of the deceased first appellant as she is only an adopted daughter of the deceased first appellant and under the Hindu Succession Act an adopted daughter does not automatically succeed to the properties of the mother. In the absence of any document executed by the deceased plaintiff bequeathing or gifting the properties the cause of action does not survive and therefore the second appellant cannot continue the proceedings as legal representative of the first appellant
6. The Counsel for the petitioner contended that originally the first and second appellants filed a suit for partition in O.S.No.220 of 1968 against the father of the Defendant No.1 for partition and separate possession. A preliminary decree was passed in the said suit on 3-4-1972. After passing of the preliminary decree the father of the first defendant died and therefore the first defendant was brought on record and he continued as legal representative of his father. Thereafter final decree was passed on 27-3-1976. Pursuant to the final decree E.P.No.42 of 1977 was filed and properties were delivered in the month of February 1977, and the first and second plaintiffs were put in possession of the properties. Therefore both the first and second plaintiffs are entitled to the properties jointly and severally. Further when one appellant is already there on record the appeal does not abate and the cause of action survives and the second appellant/ second plaintiff is entitled to prosecute the proceeding from that stage. He also contended that this case is covered under Order 22 Rule 2 C.P.C. He brought to my notice a number of judgments, which I will consider them at a later stage.
7. The question therefore is whether the second appellant is entitled to continue the proceeding after the death of the first plaintiff or whether the appeal abates on the death of the first appellant ?
8. In the final decree proceedings in 1-A.No. 1480/74 in O.S.220/68 the Petitioners 1 and 2 are Dasari Durgamma and Dake Narayanamma who are the first plaintiff and second plaintiff respectively in the present suit. In the final decree it is stated that the share consisting of B.E.C.F. of the Commissioner's plan be allotted to the petitioners towards their half share in the plaint- B schedule properties and that the petitioners be put in possession of the said B.B.C.F share of the Commissioner's plan after ejecting the respondents 2 to 5 therefrom. It is not necessary to refer to the other contents of the final decree.
9. From the above it is clear that both the petitioner namely Dasari Durgamma and Dake Narayanamma were given half share in the plaint schedule properties in the suit for partition. Therefore, both of them are entitled to a joint possession of the plaint schedule properties, which was allotted to them on partition. Therefore, on the death of the first plaintiff the second plaintiff is entitled to continue the proceeding as legal representative as the cause of action survive to her and in her own capacity also she is entitled to continue the proceeding.
10. Further, under Order 22 Rule 2 C.P.C. where there are more plaintiffs or defendants than one, and any of them dies, and where Ihe right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs or against the surviving defendant or defendants.
11. From a reading of Order 22 Rule 2 C.P.C. it is clear that if the right to sue survives to the surviving plaintiff, an entry to that effect is to be made on the record. Admittedly, in this case, the right to sue survives to the second plaintiff and therefore an entry has to be made to that effect in the record. If one ofthe appellants is on record, he is entitled to continue the proceeding.
12. The Supreme Court in New Anness v, Shaik Mohammed, 1995 (2) Supp. SCC 529, where the first defendant died during the pendency of appeal and his legal representatives were not brought on record inspite of notice but the third defendant was already on record representing all the heirs of the first defendant, held that the appeal would not abate. In Hifsa Khatoon v. Mohammad Salimar, (FB) the Full Bench of Patna High Court comprising of V. Ramaswamy -- C.J, R.K. Choudhary and K. Sahai - JJ held as follows:
"The words "survives" and "surviving" have not been used in R2 of O.22 in the technical sense of survivorship prevailing in Hindu Law. The expression "the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone", means that right to sue is transmitted or passes to the plaintiff or plaintiffs alone or against the defendant and defendants alone who are already on the record by succession, inheritance or otherwise.
In Beharilai v. Bhuri Devi, AIR 1997 SC 1879, the Supreme Court held that the original allottee was represented by widow and daughter who were on record representing his estate and on the demise of the widow her daughter on record is representing the estate of her mother as well as her father and therefore the appeal does not abate. In view of the above it follows that the second plaintiff- second appellant is entitled to continue the proceedings and the appeal does not abate.
13. The learned Counsel for the respondents brought to my notice another decision of the Supreme Court in Bibijan v. Murlidfiar, wherein the Supreme Court held, in a suit for redemption of usufructuary mortgage, that there was a joint and inseverable preliminary decree for redemption granted by the High Court in favour of the respondents and pending appeal before Supreme Court against the decree Appellants 1 and 5 died and no application was made to bring on record their legal representatives and therefore the decree for redemption being joint and inseverable entire appeal abates. In Papanna v. State of Kamataka case where on the death of one of the appellants his legal representatives not being brought on record and is inspite of notice none of the appellants appeared either through Counsel or any other person and since there was no representation, it was held that entire appeal abated.
14. The judgments referred to above by respondents Counsel are distinguishable on facts as none of the appellants were on record and therefore it was held that the Appeal abated.
15. Since the second petitioner is entitled j to continue the proceedings she filed a memo | on 17-9-1988 bringing it to the notice of the ; Court to recognise the second appellant as I the legal representative of the first appellant. However, by mistake the Court has not parsed I any orders wither on the date when the application was made or on the date ofi disposing of the appeal, namely, 5-4-1990. Hence they filed the interlocutory application i for amendment of the decree which was rejected by the Subordinate Judge. The respondents have not substantiated their contention that tie first appellant died before filing of appeal. Even otherwise in view of the above discussion, the second appellant is entitled to continue as the legal heir representing the first plaintiff The lower court ought to have amended the judgment and decree by recording the presence of the second appellant as the legal representative of the first appellant. The Subordinate Judge committed an error in not recording the second plaintiff as the legal representative of the first plaintiff- first appellant
16. In view of the foregoing discussion, the impugned order passed in I. ANo. 489/90 in A.S.No.29/88 dated 6-9-1990 passed by the learned Subordinate Judge, Amalapuram is set aside and the civil revision petition is allowed. The second appellant-second plaintiff is allowed to continue the proceedings as the legal representative of the deceased first appellant - first plaintiff. The Judgment and Decree of the lower Court and Cause title in this present revision are directed to be amended.