Patna High Court
Jitu Mahton vs Widow Of Puran Mohton And Ors. on 12 September, 1960
Equivalent citations: AIR1961PAT96, AIR 1961 PATNA 96
JUDGMENT Raj Kishore Prasad, J.
1. This appeal, by the only plaintiff, is from a judgment of the learned Special Subordinate Judge, Ranchi, who set aside the decree of the trial Judge, in favour of the plaintiff, and, dismissed his suit.
2. The appeal in this Court has stood dismissed, as against defendants-respondents 4, 5, 6, 8, 11, 13 and 14.
3. The sole question, now, for determination, is, whether the appeal, in their absence, is competent?
4. In order to decide this question, it is necessary to mention, briefly, the facts of the case.
5. The plaintiff brought a suit, out of which the present appeal arises, for declaration of title to and recovery of possession of 2.64 Acres of land, under Revisional Survey plot No. 465 which was recorded in the survey khatian as Ghairmazrua malik, on the ground that the said land had been settled with him by the landlord of the village in which the land was situated. His case was that the defendants had forcibly, without any title, cut away the paddy standing on the land in suit, and, wrongfully dispossessed him from the same,
6. All the defendants, who were fifteen in number, including the defendants against whom the appeal has stood dismissed, who hereinafter, for the sake of brevity, will be referred to as 'dismissed defendants', filed a joint written statement, denying plaintiffs title to and possession over the land in suit, and, claiming those in themselves.
7. It may be stated, at this very stage, that the defendants are admittedly in joint possession of the disputed land and, none of them claimed any specified share in it, or any specific portion of it, separately and independently. All of them claimed joint title and joint possession.
8. The trial Judge, who heard the suit, in the first instance, accepted the plaintiff's case and decreed his suit in ejectment against all the defendants.
9. Against the aforesaid judgment, an appeal was carried to the court of appeal below, only by defendants 1 to 10 and 12 to 14.
10. It may be mentioned, as desired by the appellants, that, in this Court, on the report of the peon that defendant 7, respondent 7 to the appeal in this Court, was dead, a petition was filed by the appellant to the effect that defendant 7 respondent 7, who was appellant 7 in the court of appeal below, died during the pendency of the appeal in the Court of appeal below, and, therefore, substitution of his heirs was asked for, but, subsequently, the petition was not pressed. We are, therefore, not concerned with the effect of his death in the court of appeal below.
11.The court of appeal below reversed the judgment of the trial court, and dismissed the plaintiff's suit against all the defendants, including the dismissed defendants.
12. The respondents, in spite of service of notice on them, have not appeared in the appeal, and, as such, it has been heard ex parte in their absence. I had not, therefore, the advantage of hearing the respondents.
13. Mr. Shivanugrah Narain, appearing for the appellants, with his usual fairness and thoroughness, has placed points, both for and against, for my consideration, particularly because of the res-pondents being unrepresented.
14. He argued that the fact that the appeal has stood dismissed) against some of the respondents, will not be a bar to the appeal being heard against the other respondents, because all the respondents, who were defendants, were according to the plaintiff, trespassers without any lawful title, and, therefore, the dismissal of an appeal against some trespassers did not make the appeal against the remaining trespassers incompetent. In support of his contention, he relied on a Bench decision of the Allahabad High Court in Shibban v. Allah Mehar, AIR 1934 All 716. In that case, it was held that in a suit for possession and injunction against trespassers the mere fact that one of the trespassers has died and his heirs have not been brought on the record does not make it impossible to pass a decree in favour of the plaintiffs against the trespassers who are before the Court, because such decree would, of course, be against the defendants in their personal capacity.
15. The facts of the Allahabad case are clearly distinguishable. The plaintiffs in that case claimed that the land in suit was their graveyard and that it had been wrongfully enclosed by the defendants. The defence was that the land in suit was not a graveyard at all, but was a waste piece of ground which had been enclosed by the defendants with the permission of the" Zamindar and that the enclosure was an old one. The first court decreed the suit against all the four defendants. Two of these four defendants appealed to the first appellate court and impleaded the other two defendants as pro forma respondents.
The lower appellate court allowed the appeal, and, set aside the decree of the first court and dismissed the plaintiffs' suit. On appeal by the plaintiffs to the High Court, one of the defendants, who had not appealed to the first appellate court, died, and, the learned Single Judge, who heard the appeal, in the first instance, held that the appeal had abated as against the deceased defendant respondent, but he decreed the appeal against the other three defendants respondents. The matter was then taken in appeal, under the Letters Patent, which was heard by the Letters Patent Bench, presided over by Sulaiman, C. J. and Mukherji, J.
16. Sulaiman, C. J. who delivered the joint judgment of the Court in laying down the principle, stated earlier, gave the following reasons:--
"But where a suit is brought for possession of immovable property against certain trespassers and an injunction also is claimed against them, it cannot be said that a decree for possession and injunction against some of the trespassers is so contradictory to a dismissal of the suit as against some others that it cannot be passed. It may well be that a plaintiff is prevented from objecting to the entry of a particular defendant with whom he may afterwards amicably settle the matter, but that is no ground to refuse him similar relief as against other persons to whom also he objected. Had a suit been brought against these trespassers only without impleading some of the other trespassers it could not have been dismissed on the simple ground that the other trespassers who were also either in possession or interfered with the plaintiffs' possession had not been impleaded."
17. In my opinion, if I say so with respect, the principles laid down above are too wide. This Allahabad decision therefore necessitates an examination of the position of joint wrong doers, and, the nature of their liability, because, here, according to the plaintiffs, all the defendants, including the dismissed defendants, jointly and wrongfully dispossessed them, and were joint wrongdoers and jointly liable.
18. Where the same damage is caused to one person by several wrong-doers, they may be either joint or several tort-feasors. Literally when, several persons jointly commit the tort they become joint tort-feasors or joint wrongdoers. Persons are said to be joint tort-feasors when, their respective shares in the commission of the tort are done in the furtherance of a common design. A joint act done in pursuance of a concerted purpose is a common action. In order to be joint tort-feasors, therefore, they must in fact or in law, have committed the same wrongful act. There must be a concurrence in the act or acts causing damage, not merely a coincidence of separate acts, which by their conjoined effect cause damage. All persons, who aid, or counsel, or direct, or join, in the committal of a wrong act are, therefore, joint wrongdoers. There must be some connection between the acts of the one alleged tort-feasor and that of the other. The injuria as well as the damnum must be the same.
19. To constitute a joint liability the act complained of must, as such, be joint, and, not separate. Here this condition is present, and, as such, all the defendants, including the dismissed defendants, were not only joint wrong-doers or joint tort-feasors, but also their liability, on the facts here, was joint. The cause of action against them was single and indivisible. '
20. AS a general rule the liability of joint wrong-doers in tort is joint and several, but it is not an inflexible rule; still the controlling genera! principle is that where acts of several persons, by design, or by conduct, tantamount to conspiracy, contribute to the commission of a wrong, they are jointly liable: Ram Ratan Kapali v. Aswini Kumar Dutt, ILR 37 Cal 559, which was followed in Kamala Prosad v. Chandra Nath, AIR 1928 Cal 180: ILR 55 Cal 666.
21. In the just mentioned, second Calcutta, case, AIR 1928 Cal 180, following a decree for possession and mesne profits against co-trespassers, mesne profits were determined, and a final decree, in favour of the plaintiff, against a large number of defendants, was passed. The plaintiff appealed and some of the defendants died and an application to substitute their heirs in their places was not allowed, A preliminary objection was taken to the maintainability of the appeal in view of the defect of parties noticed above. It wag held, by Mukherji and Mallik, JJ., that in an action for mesne profits against trespassers, while it is open to the plaintiff to proceed against one or some or all of several co-trespassers at his own choice, but once a decree has been obtained, it is the decree in its entirety that may be challenged on appeal, and not otherwise; for so long as the decree against some remains a final and operative decree and not subject to an appeal, even though it is not satisfied but is capable of execution, the plaintiff cannot proceed with the suit further and take an appeal as against the others.
22. The above Calcutta decision was followed by a Division Bench of this Court, presided over by Kulwarit Sahay and James, JJ., in Rameshwar Singh v. Ram Chdran Sahu, ILR 11 Pat 558: AIR 1932 Pat 327. In this case, following a decree for possession and mesne profits, a final decree for mesne profits, in a proceeding for ascertainment of mesne profits, was passed. The plaintiff appealed. It was discovered that two of the respondents died before the passing of the final decree and the application for substitution of their heirs was rejected.
The result, therefore, was that two of the defendants, against whom the original decree was passed, were dead at the time of the making of the final decree for mesne profits and their heirs were not brought on the record either in the first appellate Court or in this Court. Kulwant Sahay, J., who delivered the judgment of the Court with whom James, J., agreed, observed, relying on the above mentioned Calcutta case, AIR 1928 Cal 180, that it is no doubt true that in a case of damages a suit can be brought against all or some of the wrong-doers and such a suit cannot be defeated on the ground that all the wrong-doers were not impleaded as defendants, but that rule did not apply where the case was not a pure case of damages against wrong-doers, but was a case for possession and mesne profits, as there.
Although it was conceded, in that case, by the learned advocate for the appellant, that the suit, as a suit for possession, could not have been maintained as against some of the defendants and that all the defendants were necessary parties in the suit, still, his Lordship said that, in any event, a decree having been obtained awarding mesne profits against all the defendants, the other defendants could not be left out, and, the result of leaving out those defendants is that the appeal becomes untenable, and, cannot proceed against the remaining respondents. The preliminary objection taken by the respondents, was, therefore, upheld, as it was supported by the above mentioned Calcutta case, from which authority, his Lordship said he was not prepared to differ.
23. A Full Bench of the Oudh Chief Court, In Ghulam Abbas v. Safdar Jha Zahid Ali Mirza, AIR 1941 Oudh 219: (ILR 16 Lucknow 515), also held that whether an appeal has or has not abated must depend upon the nature and circumstances of each case, the test, in such cases being (1) whether the interests of the defendants in the suit are joint and indivisible so that the interests of the deceased cannot be separated from those of the rest, and (2) whether in the event of the appeal being allowed as against the remaining respondents, there would or would not be two inconsistent and contradictory decrees in the same case with respect to the same subject-matter. It was further observed therein that it is a matter of common sense that the Court should not be called upon to pass two inconsistent decrees about the same property, but if, on the other hand, the success of the appeal would not lead to such a result, there is no valid reason why the Court should not bear the appeal and adjudicate upon the dispute between the parties who are before it.
24. The above view was also taken earlier by another Division Bench of the Calcutta High Court, in Midnapore Zamindary Co. Ltd. v. Amulya Nath Roy, AIR 1926 Cal 893: (ILR 53 Gal 752).
25. The principles, which, therefore, emerge, from the foregoing authorities, may be summarised and restated thus:
Where acts of several persons, by design or, by conduct, tantamount to conspiracy, contribute to the commission of a wrong, they are joint wrong-doers, and, jointly liable, as the cause of action against them is one and indivisible. Although in a suit against wrong-doers it is, not necessary to implead all the wrong-doers, yet when the plain tiff has made his choice and obtained a decree against all, he cannot proceed further against some only so as to lead to an inconsistency.
Where the suit is in ejectment, and, the trespassers, alleged to be joint wrong-doers, and, jointly liable, are all made parties to it, and, a decree I therein is obtained, or, the action is dismissed' against all of them, and, an appeal is taken to the appellate Court, the appeal in the absence of one or some of the co-trespassers, becomes untenable and cannot proceed against the remaining j respondents.
No doubt it is true that it is open to the plaintiff to proceed against one or some or all of several co-trespassers at his own choice, but once a decree has been obtained, or the suit has been dismissed, it is the decree in its entirety that may be challenged on appeal, and not otherwise; because, so long as the decree against, or, in favour of, some remains a final and operative decree, and, has become final on appeal, either because the appeal against him has been dismissed, or, the appeal against him has abated, the plaintiff cannot proceed with the appeal against the others.
26. For the above reason, I am unable to follow the decision of the Allahabad High Court, relied upon, on behalf of the appellants, in the instant case, on the facts here.
27. Moreover, the facts of that Allahabad case are quite different from those of the present case. The facts, here, as also stated earlier, are these:'
28. In the instant case, the plaintiffs claimed the land in suit by settlement from the landlord and averred that the defendants, who were their relations and co-sharers of plot 464, which was bundh, had no right to retain possession of the land in suit, and, that their dispossession by them was illegal. The defence was that the disputed land, which was contiguous to plot 464, which was joint between the parties, was a part of it. The defendants denied the plaintiff's case of settlement and dispossession.
It is clear, therefore, that, according to the plaintiffs the defendants were in joint wrongful possession, without any legal title, whereas, according to the defendants they were all joint owners, and, in joint possession of the land in suit legally. Nowhere, however, either in the plaint, or, in the written statement, or, in the evidence, there is any mention that the defendants are in possession in specific shares, or, over any specific portion of the land in suit; and, if so, what is that specific, portion of the land, and what is its area. There is no indication, anywhere, on the record of the case, that their shares are ascertained, or ascertainable.
In such a situation the land in suit being allegedly in joint possession of all the defendants, including the defendants against whom the appeal has been dismissed, each defendant had interest in and possession over every inch of the land in suit, and, unless there was a partition by metes and bounds, amongst the defendants, inter se, no defendant could say, even if the defendants had lawful title to and legal possession over the land in suit, that be had title to or possession over any particular portion of the land in suit; no one till then, could even predicate as to which portion of, or, which land, or what area, out o£ the land in suit, would be allotted to him.
29. Mr. Narain, drew my attention to the decision of C. P. Sinhn, J., as he then was, sitting singly, in Bandhu Mahto v. State of Bihar, 1955 BLJR 355, in which it was held that where a suit is brought jointly by the plaintiffs, who are not members of one joint family, and, there is no indication anywhere on the record of the case that their shares are ascertained or ascertainable the appeal will abate as a whole in consequence of the death of some of the parties to the appeal without his or their heirs or legal representatives having been brought on the record, and, as such, if there is likelihood of two contradictory decisions being arrived at in the same suit the whole appeal must abate.
30. In the above case, his Lordship relied on a decision of the Calcutta High Court, in Kali Dayal Bhattacharjee v. Nagendra Nalh, 24 Cal WN 44: (AIR 1920 Cal 264), in which it was held, on the facts of that case, that though under Order 22, Rule 4, C. P. C., the appeal had abated in that case, as against the heirs of the deceased plaintiff only, the result of such abatement was that the appeal was imperfectly constituted, and, in the absence of the necessary parties, the Court could not proceed to decide the appeal on the merits.
31. I respectfully express my cordial assent to the principles laid down above.
32. Here is not a case, as was before the Supreme Court, in Dr. K. A. Dhairyawan v. J. R. Thakur, AIR 1958 SC 789 that it could be said that the suit could proceed, on the facts here, in the absence of the dismissed defendants.
33. Although the Privy Council case of Raj Chunder Sen v. Gangadas Seal, 31 Ind App 71 (PC), is not a case, like the present but, was a case of a suit for accounts and winding up the affairs of a partnership, which had subsisted between the plaintiff and the several defendants to that suit, still the principles laid down therein are helpful. In that case, one of the defendants died at the second appellate stage before the High Court, but the application for substitution of his legal representatives was rejected, as it was Out of time and no sufficient cause had been shown for the delay. The High Court held that the appeals had abated, and could 'not proceed. The Privy Council upheld the order of the High Court holding that as it could not be successfully contended that the appeals could proceed in the absence of a representative of the deceased respondent and as it was not disputed that the right to sue did not survive against the other defendants alone, the appeals were perfectly idle.
34. The question, whether an appeal has or has not abated, must, no doubt depend upon the nature and facts and circumstances of each particular case; but, the real test, in such cases, if the appeal is by the plaintiff, as here, is (i) whether the interests of the defendants are joint and indivisible, so that the interest of the deceased, or, the dismissed defendant, as the case may be, cannot be separated from those of the rest; and, (ii) whether in the event of the appeal being allowed as against the remaining respondents, there would, or, would not be two inconsistent and contradictory decrees in the same suit with respect to the same subject-matter. The Court, in such cases, cannot be called upon to pass two inconsistent decrees about the same property; but, if on the other hand, the success of the appeal would not lead to such a result, there is no valid reason why the Court should not hear the appeal and adjudicate upon the dispute between the parties before it.
35. Judged by the above criteria, the present appeal, in the absence of the dismissed defendants respondents, has become incompetent.
36. In the instant case, as already indicated, all the defendants being allegedly joint owners and in joint possession, and having been sued, jointly, and, there being no indication anywhere as to whether they bad specified shares in the land in suit, and, if so, what was the extent of the share of each of the respondents, against whom the appeal stood dismissed, there can be no doubt, that if I proceed to hear the appeal as against the remaining defend ants-respondents, the result will follow, should the appeal be allowed, and the contention of the appellant prevailed on the merits, that there would be two contradictory declaration? in one and the same suit, one by the learned Judge of the Court of appeal below in Favour of the respondents, against whom the appeal has stood dismissed, dismissing the plaintiff's suit in toto holding that he had not been able to prove his possession over and title to the suit land, and another by this Court that the plaintiff has been able to prove his title to and possession over the suit land against the remaining respondents.
But this would be a reductio ad absurdum for the whole appeal could not be reversed as to the unascertained shares of some joint holders, namely, the dismissed defendants, and confirmed to the unascertained share of other joint holders, that is, the remaining defendants on the record. The case, therefore, is one in which the appeal could not proceed in the absence of the dismissed defendants. The appeal must therefore, abate as a whole.
37. For the above considerations, I, therefore, overrule the contention of the appellants, and, hold that, as the decree is joint and indivisible, and, the interests of the defendants in the suit are joint and indivisible, and the cause of action against them is one and indivisible, so that the interests of the dismissed defendants cannot be separated from those of the rest, and, as, in the event of the appeal being allowed as against the remaining defendants, there would be two inconsistent and contradictory decrees in the same case with respect to the same subject-matter, the present appeal is imperfectly constituted and it is perfectly idle, and, it cannot, therefore, proceed in the absence of the respondents against whom the appeal has stood dismissed.
38. The result, therefore, is that the appeal fails, on the above preliminary ground, and is, accordingly dismissed; but, because the respondents have not appeared and contested the appeal, there will be no order for costs.