Kullappa Major and Anr @APPELLANT@Hash Smt. C P Vijayalakshmi

Defendant Nos.1 and 2 in O.S.No.2089/1986 on the file of the City Civil Judge, Bengaluru, have come up in this appeal impugning the judgment and

decree dated 11.04.2003. Admittedly, the said suit in O.S.No.2089/1986 is for the relief of declaration, possession, future mesne profits with reference

to suit schedule property as well as costs of the said proceedings. The said suit was contested on merits and decreed by the judgment and decree

dated 11.04.2003.

In the said proceedings, the facts would indicate that plaintiff was the purchaser of suit schedule property from defendant Nos.1 and 2 namely,

Kullappa and Muniyellappa who are sons of Chikkayellappa. The said fact is not in dispute between the parties. It is also not in dispute that the said

brothers together executed a common sale deed in respect of the entire suit schedule property in favour of the plaintiff on 13.05.1984 by receiving sale

consideration of Rs.3,000/- in one lumpsum between them. However, they did not chose to deliver possession of suit schedule property to the plaintiff,

which has necessitated the plaintiff to file the aforesaid suit for the relief of declaration of title, possession and also for the relief of mesne profits for

the period when the vendors of the property continued to be in its possession after executing the sale deed in favour of the plaintiff and as well as

costs for the proceedings. The judgment and decree that was passed in the said suit is the subject matter of this appeal, which is filed on 23.07.2003.

The material on record would indicate that appellant No.1, who is defendant No.1 in the Court below, died on 31.07.2006 during the pendency of

this appeal.

 Thereafter, an application in I.A.No.3/2012 has been filed by his legal representatives viz, his sons and daughters seeking permission to come on

record. The application filed by them was not filed within the prescribed period and hence the appeal had already abated by that time. Therefore, to

set aside the abatement caused due to death of appellant No.1, an application in I.A.No.2/2012 was filed under Order XXII Rule 9 of CPC, in the

process there was a delay of 2116 days. Hence, application in I.A.No.1/2012 under Section 5 of the Limitation Act was filed seeking condonation of

said delay. All the three applications were contested on merits and those applications were dismissed by order dated 07.11.2012. The said order is

accepted by the legal representatives of deceased appellant No.1-Kullappa and the same has reached finality in confirming the abatement that was

caused due to the death of appellant No.1.

It is seen that appellant No.2, who is the brother of appellant No.1, is trying to pursue the appeal on the premise that abatement of appeal as against

appellant No.1 is in so far as the right of appellant No.1-Kullappa only. The said abatement would not affect the right of appellant No.2-Muniyellappa

to pursue the appeal, in as much as he has a separate and distinct share in the suit schedule property, which he can protect by pursuing the appeal

though it is already abated against appellant No.1. The said contention of appellant No.2 is vehemently opposed by the respondent. Hence, the above

matter was ordered to be listed to hear regarding maintainability of this appeal by appellant No.2 after the appeal by appellant No.1 is abated.

Heard learned counsel for the respondent who is seeking dismissal of the appeal on the ground that the same is not maintainable and the said prayer

is opposed by learned Senior counsel Mr. V Padmanabha Mahale on behalf of surviving appellant No.2.

In support of the grounds raised for dismissal of the appeal, learned counsel for the respondent had relied upon the following judgments;

i) AIR 1963 SC 553;

Ram Sarup v. Munshi and others.

ii) AIR 1963 SC 1901;

Rameshwar Prasad and others v. Shambehari Lal Jagannath and another.

iii) ILR 2016 KLR 4466;

Hemareddi and another v. Ramachandra Yallappa Hosmani and others.

iv) (2010) 11 SCC 476;

Budh Ram and others v. Bansi and others.

v) AIR 1962 SC 89:

 State of Punjab v. Nathu Ram

vi) AIR 1972 SC 1455;

 Madhi v. Mahanbai and others.

 Amongst the aforesaid judgments, the one which is directly on the point is reported in AIR 1963 SC 553 in the matter of Ram Sarup v. Munshi and

others and connected matters which is decided by the Constitution Bench of the Apex Court where, under similar circumstance, the Hon’ble

Apex Court, at paragraph 4, has held as under;

“4. At the hearing of the appeal learned Counsel for the respondents submitted that the appeal ought to be dismissed as incompetent since the

same had abated on the death of the first appellant without his legal representatives being brought on record. Learned Counsel for the appellants,

however, contended that whatever might be the position as regards the share to which Mehar Singh was entitled in the property purchased, the

interest of the deceased was distinct and separate from that of the others and that the abatement could be in any event only partial and would not

affect the continuance of the appeal by the surviving appellants at least as regards their share in the property. As the deed of sale under which the

appellants purchased the property was not among the printed records of this Court, the appeal was adjourned in order to enable learned Counsel for

the appellants to produce it and substantiate his contention that the interest of the deceased Mehar Singh was distinct and separate. An English

translation of the deed of sale has now been produced before us and a perusal of it indicates that the submission made on behalf of the appellants is

not sustainable. The consideration for the sale is a sum of Rs.22,750/- and the conveyance recites that Mehar Singh and the second appellant had paid

one half amounting to Rs.11,375/- while the other three appellants had paid the other half. It is therefore not a case of a sale of any separated item of

property in favour of the deceased-appellant but of one entire set of properties to be enjoyed by two sets of vendees in equal shares. It is clear law

that there can be no partial pre-emption because pre-emption is the substitution of the pre-emptor in place of the vendee and if the decree in favour of

the pre-emptors in respect of the share of the deceased Mehar Singh has become final, it is manifest that there would be two conflicting decrees if the

appeal should be allowed and a decree for pre-emption in so far as appellants 2 to 5 are concerned is interfered with. Where a decree is a joint and a

part of the decree has become final, by reason of abatement, the entire appeal must be held to be abated. It is not necessary to cite authority for so

obvious a position but we might refer to the decision of this Court in Jhanda Singh v Gurumukh Singh, Civil Appeal No.344 of 1956 D/10-4-1962 (SC).

The result is that the appeal fails as having abated and is dismissed with costs.â€​

 (emphasis supplied)

Similar view is also followed in other judgments. However, when it comes to the judgment rendered by the Apex Court in one of the recent matters

which is cited in this proceedings namely, in the matter of Budh Ram and others v. Bansi and others reported in (2010) 11 SCC 476, at paragraph-17,

the Hon’ble Apex Court has observed the following point, which is answered in the affirmative, it reads as under;

“… Thus, whether the judgment/decree passed in the proceedings vis-à -vis remaining parties would suffer the vice of being a contradictory or

inconsistent decree is the relevant test.â€​

 In fact, in the instant appeal also the point that arises for consideration is as observed by the Apex Court in the aforesaid matter. In fact, when the

learned Senior counsel was called upon to substantiate his arguments in the light of aforesaid judgment to enable this Court to take appropriate

decision in the matter, learned Senior counsel fairly conceded that the point which is required to be canvassed in this matter is covered by the

judgment which is rendered by the Apex Court following the Full Bench judgment rendered in the year 1963 in the matter of Ram Sarup v. Munshi

and others referred to supra.

In that view of the matter, this Court holds that the appeal which is abated against appellant No.1-Kullappa would not survive for consideration of

alleged independent right of appellant No.2, in the fact situation that the judgments in its entirety will have to be looked into from the point of both the

appellant No.1 as well as appellant No.2. When once the right of appellant No.1 has resulted in abating the appeal and confirming the judgment and

decree passed by the Court below in favour of respondent-plaintiff, a contrary view cannot be taken in this appeal on behalf of surviving appellant

No.2, in the light of aforesaid judgments referred to by learned counsel for the respondent.

In the light of aforesaid discussions, this Court, while answering the point which is raised regarding maintainability in favour of the respondent,

would dismiss this appeal, as it does not survive for consideration in the aforesaid fact situation and also in the light of legal dictum by the Hon’ble

Apex Court in the matter, which was decided by the Constitution Bench, thereafter followed in several of the judgments reiterating the same.

 Accordingly, the appeal is dismissed.