Kashi Ram vs Birbal

R.C. Lahoti, J.

The plaintiff/appellant has come up in second appeal feeling agrrieved by the judgments and decrees of the Courts below dismissing his suit for declaration of title and recovery of possession.

Vide order dated 27-10-83, this Court admitted the appeal for hearing parties on the following substantial question of law :

Whether in the facts and circumstances of the case, on failure to bring the legal representatives of Sitaram on record, who was arrayed as a defendant in the trial Court in his capacity as a legal representative of the plaintiff Mannalal, the original plaintiff, on his unwillingness to be substituted in the array of the plaintiffs, the suit would abate as a whole ?

Late Mannalal, the sole plaintiff, filed a suit for declaration of title and recovery of possession over a piece of agricultural holding alleging/that the plaintiff was the owner of the property while the defendant had committed trespass over a part of it.

It appears that Mannalal, the sole plaintiff, expired. He was survived by 3 sons, namely, Kashiram, Prabhu and Sitaram and daughter Sitabai. Within the prescribed period of limitation on 4-8-77 Kashiram moved an application proposing to bring himself on record as plaintiff, also seeking impleadement of Prabhu, Sitaram and Sitabai as proforma defendants as they were not prepared to join as plaintiffs with Kashiram. The application was allowed. However, Sitaram also expired. No application was filed by anyone proposing to bring his legal representatives on record though he was survived by the legal representatives. On 11-1-78 the Court had directed the plaintiff to bring the legal representatives of Sitaram on record. On 27-2-77 the defendants moved an application inviting the attention of the Court to the default of the plaintiff and seeking dismissal of the suit as having abated. The plea of the defendant prevailed with the trial Court entailing dismissal of the suit as abated.

The view of the trial Court has prevailed with the lower appellate Court also

Before proceeding with consideration of the merits of the appeal, it would be appropriate to dispose of a preliminary objection raised by the learned counsel for the defendant/respondent No. 1 to the maintainability of the appeal submitting that the suit having been dismissed by the trial Court as abated, even the first Appeal was not competent and the remedy of the plaintiff was to have preferred a revision. This objection merits only instantaneous disapproval. Full Bench decision in Mithulal & others v. Badri Prasad & others 1981 JLJ 21, is clear and explicit that dismissal of a suit on the Court forming an opinion that the right to sue did not survive amounted to a decree inasmuch as the trial Court had dismissed the suit forming an opinion that right to sue did not survive to Kashiram alone in the absence of heirs of late Sitaram having been brought on record, the dismissal of the suit would amount to a decree. The first appeal (and consequently this second appeal) would be competent.

Rule 1 of Order 22 of the CPC provides:

R. 1. No abatement by party''s death if right to sue survives.--The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.

It is well settled that a suit for declaration of title and recovery of possession against a trespasser can be successfully filed by one of the co-owners. See Shivji and Another Vs. Hiralal and Others, and Ram Niranjan Das and Another Vs. Loknath Mandal and Others, That being the position of law if Kashiram alone could have successfully filed suit of the nature filed in the present case without impleading his other brothers and sister, it is difficult to conceive how the right to sue would not survive to him on the death of his father, the sole plaintiff, even if other brothers and sister were not adequately represented. The trial Court did err in holding that the suit had abated.

There is yet another angle of approach. The suit was filed by late Mannalal. On his death his son Kashiram came on record representing not his own interest but the joint interest with his brothers and sister. In such circumstances failure to bring on record the legal representatives of one of the brothers would not cause abatement. See Udai Singh and another v. Ram] Krishandas and others 1974 JLJ SN 103 DB. So also the approach of the trial Court cannot be held to have been legal.

It may be made clear that present one is not a case where the suit having been disposed of in presence of several co-owners on record of the case, one of them died during the pendency of the appeal and failure to bring on record the legal representatives of one of the co-owners and therefore, abatement as regards one may render abatement of the appeal in in its entirety.

For the foregoing reasons the appeal is allowed. The judgments and decrees of the Courts below are set aside. It is held that failure on the part of Kashiram in bringing on record the legal representatives of late Sitaram did not cause abatement of the suit, the trial Court shall restore the suit to its original number and proceed to hear and decide the same in accordance with law. Costs before the appellate Courts shall be borne by the parties as incurred. Counsel fee as per schedule, if pre-certified.

The contesting parties through their respective counsel are directed to appear before the trial Court on 14-12-92.