Pheku Tewari vs Bhagwat Lal and another

Agarwala, J.—Khata No. 274 of village Kataria which was entered in the record of rights in 1911 as gair mazrua am consists of two plots, namely, No. 126 which is entered as an ahar or reservoir and No. 127 which is entered as a khanta or ditch. The plaintiffs sued for a declaration that they were entitled to plot No. 126 exclusively and for recovery of possession of that plot. The contesting defendants alleged that the whole of khata No. 274 was land which was utilized by the villagers for holding their khalihans and that their own khalihan was situated on that plot. The parwana on which the plaintiffs relied was challenged as not being genuine. The first Court held that the villagers had a customary right to hold khalihans on the land of khata No. 274 and dismissed the plaintiffs'' suit on 30th May 1929. On 25th August 1929 one of the plaintiffs. Harbans Lal, died pending an appeal from the decision of the trial Court. No steps were taken to bring his legal representatives on the record. The appeal nevertheless was decided in favour of the plaintiffs by the appellate Court.

In this second appeal by the defendants the first question which has to be considered is whether the appeal in the Court below abated as regards the plaintiff Harbans Lal or whether the entire appeal abated. The test to determine whether or not failure to bring upon the record the heirs of one of the several parties who has died has the effect of causing the entire appeal to abate or not has been stated, in the case of Sheo Chand v. Sita Ram, 1927 All 331 = 100 IC 482, to be: can the appeal be decided, without bringing the legal representatives of the deceased party on to the record, without bringing into existence two decrees contrary to each other. It was held that if the result of hearing and deciding the appeal would be to bring into existence two decrees of Courts of competent jurisdiction contrary to eath other, the appeal would abate as a whole. This decision was cited with approval in Kesho Prasad Singh v. Muhammad Wahid, 1931 Pat 17 = 128 IC 119 = 9 Pat 693. The question therefore is whether the hearing of the appeal in this case might result in there being contrary decisions of two competent Courts on the subject-matter in dispute. The three plaintiffs alleged in their plaint that the proprietor of the disputed land had granted them plot No. 126 by a parwana entitling them to exclusive possession for the purpose of holding their khalihans. That claim was negatived by the Court of first instance. The plaintiffs therefore failed in that Court to establish their right to exclusive possession. It was not their case then, nor is it their case now, that each of the plaintiffs was separately entitled to any share in the disputed land. The result of not bringing on to the record the heirs of Harbans Lal is that the trial Court''s finding that the plaintiffs are not entitled to exclusive possession must in any case stand so far as they are concerned. The result of reversing the decision of the trial Court on the appeal of the remaining plaintiffs would be that whereas the trial Court had held that the plaintiffs were not entitled to exclusive possession, the appellate Court would be holding that the plaintiffs were entitled to exclusive possession, the effect thus being contrary decisions of two competent Courts. The case relied on by the plaintiffs Sant Singh v. Gulab Singh, 1928 Lah 572 = 114 IC 417 = 10 Lah 7 (FB) illustrates the position. There a certain property had been sold to four vendees in equal shares. The reversioners of the vendor sued the vendees for a declaration that the sale could not affect their reversionary, interest after the death of the vendor. The suit was dismissed. The plaintiffs appealed- but during the pendency of the appeal one of the plaintiffs died and his representatives were not brought on the record. The question that was before the High Court was whether the result of not bringing on the record the representatives of one of the deceased vendees resulted in the whole appeal abating or in the appeal abating only in favour of the deceased vendee. It was held that as the interest of the deceased vendee in the subject-matter of the appeal was separate from those of the surviving vendees inasmuch as their shares had been defined in the sale deed, it could not be said that a decree of the appellate Court in favour of the vendor''s reversioners would prove ineffective or inconsistent with that part of the lower Court''s decree which had become final upon the abatement of the appeal. This case, to my mind implies that if the sale deed had not specified the shares of the vendees, the decision of the Full Bench would have been otherwise and that also appears to be the view taken in the other cases already cited. The result is that it must be held that the appeal in the Court below abated as a whole. Consequently this second appeal must be allowed, the decree of the Court of appeal below set aside and the decree of the Court of first instance restored. The appellants are entitled to their costs throughout.