Bholanath Thakur and Another vs Sarvananda Kotoky and Others

G. Mehrotra, C.J.—This appeal is on behalf of the Plaintiffs. The two Plaintiff''s who are father and son, brought the suit for declaration of their title and possession over the disputed land and for manse profits. Plaintiffs'' case as set out in the plaint is that the property in dispute belonged to one Chandreswar Sarma Kakati who executed a will of all his properties to Defendants Nos. 4 and 5. Defendant No. 1 who is since dead, was also one of the sons of late Chandreswar Sarma Kakaty but he had no interest in the disputed property. Defendants Nos. 4 and 5 obtained probate and letters of administration of the will from the District Judge and thus became entitled to 84 bighas 4 kathas 1 lessa of land of patta No. 35 of Simaluguri Mauza. This property was amicably divided among themselves. By a sale deed dated 1st June 1956 Plaintiff No. 1 purchased 8 B 4 K. 2 lechas of land being the northern half of dag No. 864 from Defendant No. 4 for. Rs. 3000/- and by another sale deed of the same date Plaintiff No 2 purchased half of dags Nos. 1010,856,851 and 966 and 3 B. 4 Kathas of dag No. 986 from Defendant No. 4 for Rs. 3000/- Thereafter according to the Plaintiff possession was delivered to them but the Defendants Nos. 1,2 and 3 interfered with their possession. On the 1st August 1956 the deceased Defendant No. 1 filed a case u/s 145, Code of Criminal Procedure. In the court of the Magistrate at Jorhat in which his possession was declared. Hence the present suit was brought by the Plaintiffs.

In paragraph 8 of the plaint it is stated that the Plaintiffs after purchase obtained possession but Defendants Nos. 1, 2 and 3 disturbed Plaintiffs'' possession of the suit lands and by virtue of order in Misc. case No. 101 of 1956 u/s 145, Code of Criminal Procedure Defendants Nos. 1, 2 and 3 had been possessing the suit land.

The suit was defended by the Defendants on various grounds of law and fact. It was contended that the property had already been divided by the father and thus on the date of execution of the will Chandreswar Sarma Kakaly had no interest left in the property in dispute It was also urged that the will was not a genuine document.

A number of issues were framed. The trial court decided all the issues in favour of the Plaintiff and held that the Plaintiffs acquired valid title to the property. It, however, held that the Plaintiffs were not entitled to any decree for mesne profits. The suit was dismissed on the finding that as all the heirs of the deceased Defendant No. 1 were not brought on the record, the suit has abated as a whole. The finding of the trial court is that though Defendants Nos. 2 and 3 are some of the heirs of Defendant No 1 according to the Plaintiffs'' own statement, there were some other heirs of the deceased Defendant and as such the suit must abate as a whole. An application was filed by the Plaintiffs for substitution of the names of the heirs of the deceased Defendant No. 1 by amendment of the plaint. That application was disposed of on the 13th July, 1959. The praver for amendment was disallowed as the application was filed beyond time. It was, however, held by that order that the whole suit should not fail on that account and that the suit abates against Defendant No 1 alone. In the final judgment by which the suit has been disposed of, the learned Judge dealing with the previous order has observed that at the time when he passed the order of the 13th July 1959 he took that the presence of Defendants Nos. 2 and 3 would be sufficient. Even the petition for amendment does not exhaust the names of the heirs. The evidence of Plaintiff No. 1 has changed the whole position and it now appears that there cannot be an effective decree against all the heirs of Defendant No 1 It is difficult to follow the reasoning of the court below. One of the grounds given by him for not relying upon his earlier order of the 13th July, 1959 is that he thought that Defendants Nos. 2 and 3 sufficiently represented the interest of Defendant No 1 and he goes further and contends that even the application made for amendment did not contain the names of all the heirs other than Defendants Nos. 2 and 3 as disclosed in the evidence of Plaintiff No. 1.

The judgment of the court below has been assailed on two grounds. Firstly it is urged that the order of the 13th July, 1959 by which the court below had held that the suit abates only in so far as the interest of Defendant No. 1 is concerned, constitutes res judicata and it was not open to him at the later stage of the same suit to hold a contrary view. It cannot be doubled that if an order is passed at any stage of the proceedings by the court, it cannot at a later stage be ignored and the order subsists unless it is set aside by a superior court, and will be binding on that court. In the case of Satyadhyan Ghosal and Others Vs. Sm. Deorajin Debi and Another, the following observation is apposite:

The principle of res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to reagilale the matter again at a subsequent stage of the same proceedings.

If the court at the earlier stage of the proceedings was of the opinion that the proceedings could go on against Defendants Nos. 2 and 3, even though Defendant No. 1 was not impleaded as a party he cannot now at a later stage of the same proceeding turn down the earlier order and hold that the suit cannot proceed without Defendant No. 1 or his heirs on the record.

Order 22 Rule 4(1) provides:

Where one of two or more Defendants dies and the right to sue does not survive against the surviving Defendant or Defendants alone, or a solo Defendant or sole surviving Defendant dies and the right to sue survives, the Court on an application made in that behalf, shall cause the legal representative of the deceased Defendant to be made a party and shall proceed with the suit.

The provision of Order 22 Rule 4(1) contemplates two situations. There may be a case where the right to sue survives against the surviving Defendants in that event the heirs need not be brought on the record at all. There may be another case where the cause of action may not survive against the surviving Defendants and in that event the heirs of the deceased Defendant have got lo be impleaded as parties. Order 22 Rule 4(3) lays down that where within the time limited by law no application is made under Sub-rule (i), the suit shall abate as against the deceased Defendant. If the court below when it passed the order of the 13th July, 1959 was of opinion that the cause of action survived against Defendants 2 and 3, then in effect the order amounts to holding that no substitution at all was necessary and that question cannot be reagilated at the later stage of the same proceeding. If however, the court''s held by its order dated 13th July 1959 that Defendants Nos. 2 and 3 were the sole heirs of Defendant No. 1 and they being on the record it was not necessary to bring the other heirs on the record, as the interest of the deceased was sufficiently represented by them, even then such an order will constitute res judicata at a subsequent stage of the proceeding. But in view of the fact that an application was made for impleading some other heirs of Defendant No. 1 on the record, it cannot be said that the court below when it passed its order on the 13th July 1959 held that Defendants 2 and 3 were the only heirs of Defendant No. 1 and thus the order was on the finding that the cause of action survived against Defendants Nos. 2 and 3.

The next point urged by the Appellants is that even if the earlier order does not constitute res judicata on the facts of the case, it cannot be said that the whole suit abated. If the other heirs are not brought on the record, the decree against the Defendants Nos. 2 and 3 will not be binding on them. It will only be executable against Defendants Nos. 2 and 3. But it cannot be said that the whole suit will fail The court below is not right, in our opinion, in holding that there can be no effective decree unless all the heirs of Defendant No 1 are brought on the record. Undoubtedly the heirs of Defendant No. 1 who are no party to the suit, will not be bound by the decree and in that sense the decree will not be effective against the heirs. But it does not mean that no effective decree can be passed against Defendants Nos. 2 and 3. If an effective decree can be passed against Defendants Nos. 2 and 3 the whole suit cannot abate. Order 22 Rule 4(3) in express terms only lays down lhat if no application is made the suit will abate in so far as the interest of Defendant No 1 is concerned.

The court below has laid emphasis on the fact that in criminal proceedings u/s 145, Code of Criminal Procedure the criminal court had declared the possession of Defendant No. 1 and it is his possession which by means of this suit the Plaintiffs wanted to be disturbed. If that view is accepted, then Defendants Nos. 2 and 3 were not necessary parties at all The allegation in the plaint clearly shows that the possession of the Plaintiffs was disturbed by Defendants Nos. 1, 2 and 3 and further the allegation in the plaint is that in view of the order of the criminal court all the three Defendants retained possession over the disputed properly. If, therefore, Defendants Nos. 2 and 3 were also in possession as trespassers along with Defendant No. 1, in the land the Plaintiffs can gel an effective decree against Defendants Nos. 2 and 3. If there is anybody else in possession of the property in his own right or through Defendant No. 1, who will not be deemed to be party to the suit, he will not be bound by the decree and his possession will not be liable to be disturbed in execution of the decree. But it cannot be said that the whole suit will abate.

In the case of State of The State of Punjab Vs. Nathu Ram, the principle underlying Order 22 Rule 4 has been explained, although that was a case of appeal and it was held on the facts of that case that the appeal abated as a whole. The following principle laid down may be quoted:

It is not disputed that in view of Order 22 Rule 4, Code of Civil Procedure, hereinafter called the Code, the appeal abated against Labhu Ram deceased, when no application for bringing on record his legal representatives had been made within the time limited by law. The Code does not provide for the abatement of the appeal against the other Respondents. Courts have held that in certain circumstances, the appeal against the corRespondents would also abate as a result of the abatement of the appeal against the deceased Respondent. They have not been always agreed with respect to the result of the particular circumstances of a case and there has been, consequently, divergence of opinion in the application of the principle. It will serve no useful purpose to consider the cases Suffice it to say that when Order 22 Rule 4 does not provide for the abatement of the appeals against the corRespondents of the deceased Respondent there can be no question of abatement of the appeals against them. To say that the appeals against them abated in certain circumstances, is not a correct statement. Of course, the appeals against them can-not proceed in certain circumstances and have therefore to be dismissed. Such a result depends on the nature of the relief sought in the appeal. The same conclusion is to be drawn from the provisions of Order 1 Rule 9 of the Code which provides that no suit shall be defeated by reason of the misjoinder or non-joinder of parties and the Court may, in every suit, deal with the matter in controversy so far as regards be rights and interests of the parties actually before it. It follows, therefore, that if the court can deal with the matter in controversy so far as regards the rights and interests of the Appellant and the Respondents other than the (sic) Respondent, it has to proceed with he appeal and decide it It is only when it is not possible for the Court to deal with such natters, that it will have to refuse to proceed further with the appeal and therefore dismissed.

Applying this principle to the facts of the present case, it cannot be said that it was empossible for the court below to proceed wih the suit and to adjudicate on the rights of the Plaintiffs and Defendants Nos. 2 and 3.

Some argument was advanced by the ounsel for the Respondents that Defendant No. 1 was not impleaded as the karta of the joint family and as such after his death it cannot be said that the family as a whole was (sic) by Defendants Nos. 2 and 3. In he view which we have taken it is not necessarly to go into that question and consider the Authorities cited by the Respondents in support of this contention. As on the merits of the case the finding is in favour of the Plaintiffs, which has not been seriously challenged before us, we allowed this appeal and set aside (sic) decree of the court below and decree the Plaintiffs'' suit for possession against Defendants Nos. 2 and 3, Plaintiffs'' claim for manse refit is however dismissed. The parties will ear their own costs throughout.