Bhanwar Singh and others vs Man Singh and others

Nigam, J.C.

Civil Suit No. 312 of 1944 was filed by Kesar Singh in the court of the Subordinate Judge, Ajmer, against Bhopal Singh and thirty-five others claiming a declaration that he was the sole proprietor of Bhum land in Khata No. 8 in village Arjunpura (Khalsa) and also a decree for possession of the land in suit as well as a decree for correction of the entry in the Settlement records. During the pendency of the suit, Bhanwarsingh and Govindsingh defendants 22 and 24 died. There was delay in the presentation of the application for bringing legal representatives on the record and the learned Additional Subordinate Judge held that the suit had abated against Defendants 22 and 24. He further held in consequence of this abatement, that the suit had abated as a whole and consigned the records.

Against that judgment and decree, Kesar Singh''s heirs Man Singh and Kishore Singh filed Civil. Appeal No. 110 of 1950 in the Court of the District Judge. The learned District Judge accepted the appeal and held that the suit had abated against defendants 22 and 24 but that the suit had not abated as a whole. He, therefore, remanded the case to the trial court for disposal in accordance with law. Now Bhanwar Singh and twenty-nine others have come up in second appeal against that order. The learned counsel for Man Singh and Kishore Singh (Respondents 1(a) and 1(b) has raised a preliminary objection. The other respondents are absent and the appeal has been heard ex parte as against them.

The learned counsel for respondents 1(a) and Kb) urges that no second appeal will lie against an order passed by the first appellate court setting aside an abatement. The learned trial Judge had refused to set aside the abatement as regards Defendants 22 and 24. This order was upheld by the learned District Judge. The learned trial Judge had further held that in view of the abatement of the suit against defendants 22 and 24, the whole suit had abated. This order was set aside by the learned District Judge and it is this part of the order that is being challenged before me.

The learned counsel has referred me to O. 43, R. 1(K), Civil P.C. and urges that such an order cannot be challenged in second appeal before this Court. The learned counsel for the appellants has referred me to -- AIR 1945 298 (Lahore) and -- Brij Jivan Lal and Another Vs. Shiam Lal and Others, I am of opinion; that in fact that the learned trial Judge passed two orders, the first was an order refusing to set aside the abatement against defendants 22 and 24. There can be no second appeal against that order. The learned trial Judge went further and disposed of the whole suit. That part of the order, in my opinion, amounts to a decree and gives rise to a right of second appeal.

As regards the merits, the learned counsel for the appellants has urged that the whole suit did actually abate. The learned counsel has referred me to -- Balwant Singh and Others Vs. Emperor, and -- ''Ratan Lal v. Choga'', AIR 1950 Ajmer 43 (D). In my opinion, the facts of the case are different. In -- '' AIR 1950 Ajmer 43 (D)'', it was held that the respondent who had died, had a joint and inseparable interest from the other respondents and therefore the appeal had abated ''in toto''.

In the present case, it is conceded that though all the defendants are shown to be in possession jointly but they are shown to be entitled to specific shares. Thus, the respondents do not claim inseparable interest. Their interest is definitely separable. The learned counsel for the appellants has also urged that the plaintiff claimed a declaration as the sole proprietor of the land in suit and also possession of the land. I do not anticipate any difficulty. If the plaintiff''s suit is decreed he could be granted joint possession with the heirs of defendants 22 and 24. Similarly, he could be granted a declaration that he was the proprietor of the lands in suit along with the legal representatives of defendants 22 and 24. A similar decree for correction of the Settlement entry could also be granted. I am, therefore, of the opinion that the suit did not abate as a whole and that the order of the learned District Judge on the point is correct.

No other point has been pressed in the appeal before me. I, therefore, see no force in this appeal and dismiss it with costs.

There is also a cross-objection by Respondents 1(a) and Kb). It is urged that the learned District Judge was in error in not setting aside the abatement against Bhanwar Singh and Govind Singh. The question whether there was sufficient cause is a question of fact and the finding of fact recorded by the learned District Judge is binding on this Court. The cross-objection is therefore dismissed with costs.