Roop Singh etc. vs Mahant Ram etc.

D.B. Lal, J.—This second appeal is directed against the decision of the Additional District Judge Bilaspur, affirming on appeal the decision of the Subordinate Judge, in a suit for declaration by the Plaintiffs Sher Singh and three others for ownership and joint possession of land measuring 47 bighas, 19 biswas and situate in village Samloh, Pargana Ajmerpur of that district, whereby the suit was partly decreed in favour of Sher Singh and others to the extent of 6 big has, 14 bis was and dismissed for the rest. The Plaintiffs appeared in Court with the allegations that one Shrimati Dwarku was the owner of one-half share in the property of which she made a gift on 11-11-1957 in favour of the Plaintiffs. Dwarku was in actual possession of 6 bighas, 14 biswas and the Plaintiffs came in possession of that area. As to the remaining area, the Plaintiffs were in joint possession as co-sharers. They filed a suit for partition in the Revenue Court, but were directed to institute a Civil suit as their title was disputed by the Defendants Daya Ram and others who were co-sharers with Dwarku.

The defence was that Dwarku had executed a deed of surrender of her one-half share in the land (Ex. DA) on 17th Fagun, 1987, BK equivalent to 1930 AD, in favour of the Defendants and thus made them the absolute owners of her share. However, Dwarku retained for her maintenance 6 bighas, 14 biswas of land comprising in five specific fields, in KhasraNo. 228. It was further contended, inter alia, that the Defendants had perfected their title by remaining in adverse possession and the Plaintiffs could not claim title on the land excepting in 6 bighas, 14 biswas.

Both the pleas of the Defendants found favour with the learned Subordinate Judge and although the suit was dismissed, yet it was held that the Plaintiffs had an enforceable title for 6 bighas, 14 biswas against the Defendants. All the four Plaintiffs came in appeal before the District Judge. The appeal was filed on 4-12-1963. During the pendency of the appeal, on 5-3-1967, Sher Singh died but his legal representatives were not brought on the record under Rule 4 of Order 22 of the Code of Civil Procedure. As such the order of abatement was passed so far as the joint share of Sher Singh was concerned. An application was presented by the remaining Appellants on 6-7-1968 for setting aside the abatement, on the contention, that Sher Singh held special power of attorney for the other Appellants, that the pendency of appeal was not within the knowledge of other Appellants two of whom were serving in the Army and that there was a sufficient cause for not applying within the prescribed time for substitution of legal representatives. This contention did not find favour with the learned District Judge and the abatement was not set aside by an order dated 5-9-1968.

The learned Additional District Judge further held that the share of the deceased-Appellant Sher Singh was joint with the other Appellants and that there was a common ground in the case set up by them. The decree having been made final against the heirs of Sher Singh, was likely to come in conflict with the decree which might '' be passed in appeal in favour of the other Appellants. As such according to the learned District Judge the entire appeal had abated as it was not properly constituted. With these findings, the learned District Judge dismissed the appeal of the remaining Appellants. The appeal had, of course, abated in regard to the share of the deceased Sher Singh. Against that decision, the present second appeal is directed.

The learned Counsel essentially combats the finding on the question of sufficient cause shown by the Appellants for setting aside the abatement order. It has been contended that Section 5 of the Indian Limitation Act applied and a liberal construction must be given to the expression "sufficient cause" in order to advance justice. According to the learned Counsel, it was Sher Singh who held special power of attorney for the other Appellants. He had signed the plaint and was attending the Court proceedings. Two of the Appellants are serving in the Army. Be it as it may, the fact of the matter is that the remaining three Appellants very well knew when they executed the special power of attorney that Sher Singh was contesting on their behalf in the pending suit. When Sher Singh died and they were obviously aware of his death, they should have known that they have to make another arrangement for the prosecution of the appeal which was pending on that date. One of the Appellants Roop Singh is not serving in the Army. It is stated that he is illiterate and that he used to give his thumb impressions on documents. This fact alone cannot be alluded to, for giving a finding that Roop Singh was unaware of the Court proceedings. It is stated that two of the Appellants are serving in the Army and so the proceedings should have been postponed under the provisions of the Indian Soldiers (Litigation) Act, 1925. But for this the Appellants had to establish special circumstances under the provisions of that Act before the litigation could be postponed, which they never did. As such they were not entitled to any relief under that Act. The Court was thus not left with any doubt when it held that the three Appellants very well knew the proceedings pending in appeal. In fact the Appellants were guilty of negligence and remissness when they did not pursue the appeal and did not bring on record the necessary legal representatives. The learned Counsel for the Appellants relied on The The State of West Bengal Vs. The Administrator, Howrah Municipality and Others, This authority would be of no avail even upon the observations of their Lordships. A liberal construction to the expression "sufficient cause" is only amenable when no negligence or inaction or want of bonafide is imputable to a party invoking the aid of Section 5 of the Limitation Act. Such negligence or inaction or even want of bonafide can easily be alluded to the Appellants. Therefore, it was rightly held that no sufficient cause was made out for not preferring the application within the prescribed time. The appeal had rightly abated against the joint share of Sher Singh.

A feeble argument was raised by the learned Counsel for the Appellants that some specific issue should have been framed by the learned first Appellate Judge on this plea as to whether sufficient cause existed for not preferring the application within the prescribed time. It is evident, none of the parties pressed for the framing of such issue. They were well aware of the allegations made by the Appellants and the defence set up by the Respondents. When the points of contention were in the knowledge of the parties and sufficient opportunity was given by the District Judge to adduce evidence, there would hardly be a case of interference by this Court on any such ground that a specific issue was not framed or that a party was deprived of his right to produce evidence or to plead his case in a proper manner. In fact, no such plea was advanced at any stage before the learned District Judge.

Therefore, one has to proceed assuming that the appeal had abated so far as the share of Sher Singh was concerned. The learned Counsel then contended that the entire appeal should not have abated. For this, he relied upon two cases: (1) Mahadeo Singh and Others Vs. Talib Ali and Others and (2) Nanak deceased represented by Umra and Ors. v. Ahmad Ali AIR 1946 Lah 399. In the Allahabad case, a pre-emption suit was dismissed. The Plaintiffs preferred an appeal. Thereafter one of the Plaintiffs died and his legal representatives were not brought on the record. It was held that the remaining Plaintiffs could pursue the appeal which did not abate against them. In that case, however, it was observed that the Plaintiffs did not possess a joint right to pre-empt and since any one of them could file an independent suit without impleading the others, the entire appeal never abated. It was held that the fact that two or more claimants to a right of pre-emption joined in one suit instead of bringing separate suits of their own, could not convert the separate rights of the several Plaintiffs into a joint right. In the present case, such is not the position as the right of individual Appellant is intermixed with the other and they claim a joint right over one-half share of Dwarku who did not possess a separate share in the whole property. In fact, the Appellants claimed co-ownership with the Defendant-Respondents. In the Lahore case (supra) the suit was filed against the trespassers and one of the Defendants had died during the pendency of appeal. It was held that the entire appeal did not abate as one co-sharer could sue a trespasser on behalf of others. That was the distinguishing feature. In my opinion, the controversy has been laid to rest in Sri Chand and Ors. v. Jagdish Per shad Kishan Chand and Ors. AIR 1966 SC 1427 . In that case, one of the Appellants died during the pendency of appeal to Supreme Court. The appeal had abated so far as the claim of the deceased Appellant was concerned. The decision appealed against became final to that extent. The effect alluded to was that the entire appeal abated. A decree against Appellants proceeded on common ground to all and there was obvious danger of a conflict in decrees. In order to avoid such a conflict it was held that the entire appeal had abated. Order 41, Rule 4 of the CPC could also be of no avail to the Appellants. A similar view was taken in Harihar Pati Vs. Sisir Kumar Bose and Others, , Mst. Sunehru Vs. Rikhi Ram and Others, and State of Hyderabad and Another Vs. Mohammed Afzal and Others,

The Plaintiffs suit was dismissed on the grounds (1) that the deed of relinquishment by Dwarku was proved which deprived her of the right in the property, and (2) that the Defendants became owners by adverse possession. The four Appellants (including the deceased Sher Singh) were deprived of their right of one-half share in the property because of these reasons. However, they were held to be entitled to 6 bighas, 14 biswas which was retained by Dwarku and of which she became the full owner when Section 14 of the Hindu Succession Act, 1956 came into force. Thus the decree became final against the heirs of Sher Singh so far as his joint share was concerned in the one-half share of Dwarku. The said decree is likely to be altered or reversed if the remaining three Appellants are permitted to pursue the appeal and it is held that the deed of relinquishment is not valid and Dwarku retained title for the entire one-half share of which she became full owner subsequently under the Hindu Succession Act or that the Defendants did not get title by adverse possession. There would thus be a situation of two conflicting decrees having arrived in one and the same cause. The plea set up by the Plaintiffs was a joint plea and the share claimed was one-half which is joint share with other co-sharers, namely, the Defendants. For such a situation, there is no escape but to hold that the entire appeal became incompetent and could not be heard and decided as it would result in conflict of decrees. Order 41, Rule 4 would have no application. The abatement has no doubt resulted so far as the share of Sher Singh is concerned, but the remaining appeal cannot be stated to be properly constituted and hence must be dismissed.

In this view of the matter, I consider that no exception can be taken to the decision of the learned Additional District Judge. The appeal has no force and is dismissed, with costs to the Respondents.