Dayanand vs Jageshwar and Others

K.K. Lahoti, J.

Defendant aggrieved by judgment and decree of lower appellate Court has filed this appeal, which was admitted on 21.2.2000 on following substantial question of law :

Whether the lower appellate Court was right in holding that on account of the death of Bhagwatdeen, the appeal before the court below abated partially and not fully ?

Facts of the case are that parties are closely related to each other. The genealogical tree of the parties is as under:

Suit was filed by late Man Singh against Bhagwatdeen and Dayanand for declaration,.....possession and for partition on the ground that disputed agricultural land of Khasra No. 161 bearing Survey No. 517, 519 and others total 30 Kitta, area 41. 83 acre situated in village Karki, Tahsil Jaisinghnagar, is an ancestral property. The plaintiff stated that both the parties are having equal share in the property, Gangadeen ancestor of the parties died 50-60 years back and land was succeed by his two sons Ghursen and Govind. After the death of Gangadeen, Ghur Sen being the elder son, entire property was recorded in his name and being looked after and managed by him as Karta. At the relevant time Govind Singh, who was co-owner and jointly residing with him, continued in joint possession. Govind Singh died 45 years back. Thereafter, Ghursen alone cultivated the land. It is alleged that at that time Man Singh, plaintiff was minor and was under the guardianship of Ghursen. It being ancestral property his rights were secured. Govind Singh lived during his life time alongwith Ghursen jointly and after the death of Govind Singh Man Singh and Ghursen succeeded in equal share. After the death of Govind Singh, Ghursen asked Man Singh that when he will become major, he will get property and till he attains majority Ghursen will cultivate the land of his share. Before 22-23 years of filing the suit, Ghursen died and after his death defendants without the knowledge of plaintiff have got their names entered in revenue records and to grab the property of the plaintiff, started to cultivate the land and given threat to the plaintiff that after the death of Ghursen as the land recorded in their names, the plaintiff has no title. Hence, suit was filed.

Defendants contested the suit on the ground that during the lifetime of Gangadeen he had partitioned the propery and land situated at Beli fell into the share of Govind Singh. Govind Singh during his lifetime sold it to Koduram. In these circumstances, Govind Singh has no right in the disputed property. Disputed property fell into the share of Ghursen. After partition Ghursen and Gangadeen lived jointly. Land recorded in the name of Ghursen is less fertile while land which was given to Govind Singh was more fertile land. Gangadeen died in the year 1932 and Govind Singh died before 45 years. Ghursen died on 24-11-58 and thereafter in the knowledge of Man Singh the land was recorded in the name of defendants. At the relevant time, Man Singh resided with Ram Manohar and was taking care of property of Ram Manohar also. Plaintiff had no concern with these properties. The defendants have contended that since 24.11.58 they are in possession as owner, suit was not filed within 12 years, is barred by time.

Learned trial Court framed issues and after recording the evidence has found that suit is barred by time and on the basis of evidence, defendants'' adverse possession was found. Consequently, the suit was dismissed.

Against the judgment and decree of the trial Court, plaintiff preferred an appeal. During the pendency of appeal, defendant Bhagwatdeen died on 12.1.97. Application for substitution of his legal representatives was filed on 9.9.97. This application was contested by legal representatives of Bhagwatdeen. Evidence was recorded and thereafter learned lower appellate Court vide order dated 11.11.98 held that the application was not filed within time and the appeal against Bhagwatdeen abated. The order dated 11.11.98 passed by the learned lower appellate Court was not challenged. Respondent / plaintiff has not even preferred cross-objection in this regard. So the order has become final. Learned lower appellate Court by the impugned judgment, dismissed the suit against Bhagwatdeen on the ground that the appeal against Bhagwatdeen abated but decreed the suit of plaintiff/respondent against appellant Dayanand and directed that from the land 20.91 acre, which belongs to appellant Dayanand, plaintiffs are entitled to half share, i.e. 10.45 acre and accordingly decree for possession was passed. Learned lower appellate Court by the impugned judgment, held that the suit is within time. The property is ancestral property and plaintiffs are entitled for their share from the same property. Aggrieved by the judgment and decree passed by the lower appellate Court, this appeal was filed by the appellant Dayanand, which was admitted on above-quoted substantial question of law.

Learned counsel appearing for the appellant submits that the decree was joint and indivisible decree, suit of plaintiff was dismissed by the trial Court as barred by time and defendant Bhagwatdeen and appellant Dayanand had acquired right by adverse possession. The decree, in so far as it relates to Bhagwatdeen, has become final and finding of the trial Court in respect of Bhagwatdeen cannot be assailed as appeal abated against him. In these circumstances, a contradictory decree has been passed by the learned lower appellate Court holding that the property is joint property, suit is within time and plaintiffs are entitled to half share from appellant. In these circumstances, Bhagwatdeen who was in possession of 20.91 acre got the land on the basis of trial Court decree, while appellant has been found entitled only for 10.45 acre land and decree against appellant passed. There are contradictory decrees which cannot be passed, in fact entire appeal before the lower appellate Court had abated. Learned counsel for the appellant relies on judgment of this Court in Shakoor Khan and Others Vs. Ram Mohan and Others, ) wherein this Court, in para 5, held:

....The suit was for joint decree for possession against all the defendants and not for specific shares against individual defendants. The trial Court has also passed a decree for possession against all the defendants jointly and not for specific shares in the land against individual defendants. The decree is thus joint and indivisible. In such circumstances, if the decree is held to have become final as against Ibrahim Khan and the appeal on behalf of the surviving defendant-appellants is accepted then there would be conflicting decrees. There is thus no escape from the conclusion that the appeal having abated qua the interest of Ibrahim Khan, it must be taken to have abated as a whole.

The situation in the present case is similar. As seen above, there is two contradictory decrees. Against Bhagwatdeen suit has been dismissed holding that he has acquired title by adverse possession and suit against Dayanand decreed holding it within time reversing the finding about adverse possession. In fact, entire appeal abated before the learned lower appellate Court as decree was indivisible against the defendants. Consequently, the learned lower appellate Court has committed error in passing the decree against appellant, this appeal deserves to be allowed. And it is held that the appeal abated against the appellant also and no decree could be passed against appellant.

The appeal is accordingly allowed. Judgment and decree passed by the lower appellate Court are set aside and matter is confined to record room having abated as a whole. Parties to bear their own costs.