Abhe Singh @ Abhe Ram and others vs Zile Singh

Pritam Singh Pattar, J.—This is a second appeal filed by the defendants against the order dated August 31, 1973, of the Additional District Judge, Jind, whereby he accepted the appeal of Zile Singh, plaintiff, and held that his suit abated to the extent of 1/4th share of Pohlu deceased in the property and he directed the parties to appear before the trial Court for further proceedings in the suit according to law.

The facts of this case are that a suit for possession of Killa No. 89/17/2 measuring 6 Kanals, situated in village Shamlo Kalan, Tehsil and District Jind, was filed by Zile Singh, plaintiff, against Pohlu Abhe Singh, Richhpal and Risala sons of Mam Chand of that village, on the allegations that they had taken forcible possession of this land of which he is a co-sharer and is entitled to get a decree for possession against them. The suit was contested by the defendants. On the pleadings of the parties, the trial Court framed the following issues :--

Whether the plaintiff is co-sharer of the land in dispute, as alleged-in the plaint ?

Whether this suit is bad on account of non joinder of necessary parties as mentioned in the written statement, if so, to what effect ?

Whether the plaint does not disclose any cause of action, if so, to what effect ?

Whether this Court has got no jurisdiction to try this suit?

Relief.

During the pendency of the suit, Pohlu defendant died on January 19, 1972. Zile Singh, plaintiff, made an application on July 27, 1972 under Order 22 Rule 4 of the Code of Civil Procedure, to bring the legal representatives of Pohlu on the record, alleging that he came to know of his death on July 19, 1972. This application was contested by the defendants. The pleaded that the application was barred by limitation. On these pleadings of the parties, the following issues were framed :--

What is the date of death of Pohlu ?

Whether the applicants are the legal representatives of Pohlu deceased ?

Whether the suit has abated ?

Relief.

The trial Court held that Pohlu defendant died on January 19, 1972 and that the application for bringing his legal representatives on the file was filed long after the expiry of the period of limitation and the suit abated in toto, feeling dissatisfied the plaintiff filed appeal against this order in the Court of the Additional District Judge, Jind. During the pendency of the appeal, Zile Singh plaintiff-appellant filed an application for amendment of his application under Order 22 Rule 4 of the CPC to make a prayer for condonation of delay in-making the application. These applications were allowed by order dated May 24, 1973 of the Additional District Judge and the following additional issue was framed :--

Whether there are any sufficient grounds for condonation of delay ?

The Additional District Judge affirmed the decision of the trial Court on issues Nos. 1 and 2. He held that there was no sufficient ground for condonation of the delay in making the application for bringing the legal-representatives on the file and decided the additional issue against the plaintiff-appellant. On issue No. 3, he held that the suit did not abate in toto and that it abated to the extent of 1/4th share of Pohlu deceased in the property. He, therefore, partly accepted the appeal and remitted the case to the trial Court for decision on merits. Feeling dissatisfied, the defendants Abhey Singh and others filed this appeal.

The only question for determination in this appeal is whether there was partial abatement of this suit to the extent of the share of Pohlu deceased or there was a total abatement of the suit. Mr. Jatinder Vir Gupta, learned counsel for the appellants contended that the suit abated in toto and the decision of the trial court was correct. In support of this contention he relied on The State of Punjab Vs. Nathu Ram, . The facts of that case were that certain land belonging to two brothers L and N jointly was acquired for military purposes and on their refusal to accept the compensation offered by the Collector, the State Government referred the matter for enquiry to an arbitrator under Rule JO of the Punjab Land Acquisition (Defence of India; Rules, 1943. The arbitrator passed a joint award granting higher compensation and also certain sum on account of income tax. The State Government appealed against the award to the High Court. During the pendency of appeal L died and as his legal representatives were not brought on record, the appeal abated against him. The question was whether the appeal also abated as against N. On these facts, it was held that the appeal against N alone could not proceed. It was further held per head note :--

The question whether a Court can deal with such matters or not, will depend on the facts of each case and therefore no exhaustive statement can be made about the circumstances when this is possible or is not possible. It may, however, be stated that ordinarily the considerations which weigh with the Court in deciding upon this question are whether the appeal between the appellants and the respondents other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the Court. The test to determine this has been described in diverse forms. Courts will not proceed with an appeal (a) when the success of the appeal may lead to the Court''s coming to a decision which will be in conflict with the decision between the appellant and the deceased respondent and, therefore, which would lead to the Court''s passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief''s against those respondents alone who are still before the Court and (c) when the decree against the surviving respondents, if the appeal succeeds will be ineffective, that is to say, it could not be successfully executed.

To the same effect was the law laid down in Swaran Singh Puran Singh and another v. Ramditta Badhawa (dead) AIR 1962 P&H 216 89, a Division Bench decision of this Court. In Babu Sukhram Singh Vs. Ram Dular Singh and Others, , it was held as under :--

Where a joint claim against several defendants is made in a suit and during pendency or appeal by the plaintiff some of the defendants die and no separate claim is made against any of the defendants in appeal, the failure of the plaintiff to bring on record their legal representatives results in abatement of appeal in toto.

The learned counsel for the appellants further contended that the defendants, who are real brothers, were tresspassers and, therefore, all of them were necessary party to the suit and if one of the defendants died and his legal representatives, were not brought on the record within the period presented by law, the suit shall abate in toto. In support of this contention, he relied on a Division Bench authority of Calcutta High Court reported in Arunadoya Chakrabarty and Others Vs. Mahammad Ali and Others, , wherein it was held per head notes (b) and (c) as under :--

The principles governing the rule of joinder of defendants in an action for ejectment are mainly two ; first, if any of the persons in possession is left out, he remains in possession as not being affected by the decree, and the decree as one in ejectment and for possession becomes infructuous because the persons ejected as being bound by the decree can always come in under the person who remains in possession ; and second, there is a certain amount of risk involved in not making the persons in actual possession defendants, for, in execution of the decree, persons may happen to be turned out who may then bring action against the plaintiff for wrongful dispossession, not being bound by the decree--------------The rule that all persons in actual possession should be joined as parties has been firmly established and the principle that a suit will not be entertained where no effective decree can be passed in it is well recognized.

In Damodar Patra and Others Vs. Kanchan Sahuani and Others, , it was held as per head-note (b) as under :--

In an action in ejectment all persons in possession should be impleaded as defendants. There is no distinction in principle between the cases of trespasssrs and of tenants who claim to hold under a title, because all actions in ejectment proceed on the assumption that the plaintiff has tiltle, and hence the right to possession, and that the defendant has none. Therefore all trespassers known to be in possession by the date of the suit are necessary parties to such suit and the decree against one trespasser cannot be effectively executed without driving out all other trespassers squatting on the land at the time of the accrual of the cause of action. In the absence of the legal representatives of the deceased defendant the controversy as regards the rights and interests of the plaintiffs and the surviving defendant cannot be effectively determined, and even it is determined, the decree passed will not be effective decree and can be rendered infructious by the action of the legal representatives of the deceased defendant and by surviving defendant taking shelter under the legal representatives of the deceased---------Even assuming that in suit for ejectment the trespassers are not joint tort-feasors and each one is a tresspasser with respect to half the interest the suit would still be incompetent against the surviving trespasser. This is based on the principle that the right, title and interest inter-se between the surviving the deceased defendant cannot itself be determined in the absence of the legal representatives of the deceased defendant. Such determination would affect the rights of the legal representatives. Even if their rights are not affected, the decree passed by the Court determining their interest inter-se vis-a-vis the plaintiffs would not be binding on them and could not be enforced, On this basic principle even if there is severance of joint status between the defendants the suit would be incompetent against the surviving defendant.

In Hardial Singh and Another Vs. Bagga Singh, the facts were that Bagga Singh filed a suit against Gurdial Singh and his brother Hardial Singh for possession of 6 Kanals and 18 Mnrlas of land situated in village Gulwatti, District Patiala, on the allegation that the defendants were trespassers on the land. During the pendency of the suit; Gurdial Singh defendant died and the plaintiff made an application to bring his legal representatives on the file. This application was opposed by Hardial Singh defendant on the ground that it was barred by limitation and the suit abated in toto. The trial Court decided that the application was made after the expiry of the limitation and the suit abated in toto. Against this order of the trial court, the plaintiff filed an appeal, which was allowed by the Additional District Judge, Patiala vide his order dated May 1, 1971. Being aggrieved, the defendant Hardial Singh filed second appeal in this Court. On these facts, it was held as per head note (b) as under :--

In the case of joint tortfeasors the suit could not have been brought against some of them leaving out others. In such a situation even if a decree had been obtained, it could not have been successfully executed against the trespassers who had not been impleaded as defendants even though some other trespassers had been impleaded and decree against them had been obtained, There is, therefore, no escape from the conclusion that the suit abates as a whole and not only against the legal representatives of the deceased defendant.

In this case, the law laid down in State of Punjab v. Nathu Ram (supra) and Swaran Singh Puran Singh v. Ramditta Badhawa (supra) was followed. To the same effect was the law laid down in Sardara v. Allahyar AIR 1923 Lah 132 , and Hakir Mahamed and Others Vs. Abdul Majid and Others, Therefore, the legal position is that in a suit for possession of property, all the trespassers in possession of the same are necessary parties to the suit and such a suit cannot be brought against some of them leaving out the others because in such a situation even if a decree is obtained it cannot be successfully executed against the trespassers, who have not been impleaded as defendants. Consequently, if the legal representatives of one of the defendants, who were trespassers, are not brought on the file, then the suit abates as a whole and not against the legal representatives of the deceased defendant.

The learned counsel for the respondent Zile Singh relied on Shibban and Others Vs. Allah Mehar and Another to show that the suit did not abate in toto. In this case, it was held as under :--

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. Such decree would, of course, be against the defendants in their personal capacity.

To the same effect was the law laid down in Raja Himanshudhar Singh Vs. Ram Hitkari and Others, .

Next reliance was placed on Nanak v. Ahmad Ali AIR 1946 Lah 399 (FB). In this case, the facts were that a decree for possession had been passed against the trespassers and only some of them had filed an appeal against it. The question for determination was that what would be the effect upon the rights of the non-appealing trespassers if the appeal was allowed. On these facts, it was held that each trespasser had an independent right of appeal and the effect of the acceptance of the appeal of the co-defendant will be that he cannot be ejected and that the decree will become final against the non-appealing defendants, who will be liable to ejectment. These observations related to the right of a trespasser to file an appeal if decree for possession had been passed against him. The question whether a suit by the true owner against two or more trespassers would abate in toto, if one or more trespassers had died and their legal representatives have not been brought on record within time or was not considered in the case. Further, in this case it was found that the plaintiff was in possession of a house regarding which he had brought suit for cancellation of the sale deed executed in favour of Nanak and Khair-ud-Din defendants. The shares of both the vendees were also specified and it was held that both the vendees would be presumed to have purchased the property in equal shares. It was not a case where the suit had been filed against the trespassers, who were in possession of the land and the house. On the other hand, the suit had been filed by the owner in possession and it was only for declaration of his title to the house.

For the above reasons it is held that the law laid down in these cases does not help the respondent at all. On the other hand, according to the cases cited by the counsel for the appellants it is held that the suit abated in toto. As a result, the appeal is accepted, the order of the Additional District Judge, Jind is set aside and the suit is dismissed as having abated in toto. In view of the point of law involved, the parties are left to bear their own costs.