DHUP SINGH Vs. RATTAN

JUDGEMENT

(1.) This is an appeal by certificate. Some of the plaintiffs in a partition suit are the appellants. Dhup Singh and 30 others filed a suit against Ban Singh and 46 others for partition of a part of abadi deh of Pana Koran in Mauza Ladpur, Tehsil Jhajjar, District Rohtak, measuring about 49,000 sq. yards. The plaintiffs claimed that they were co-sharers in the suit lands in proportion to their respective shares in the khewats. The suit was contested by defendants 8 to 14 only through defendant number 10 Chuni Lal. It proceeded ex parte against the other defendants. The contesting defendants inter alia, took the plea that no decree for partition could be passed as in a prior suit for partition for the abadi land of Pana Koran, the abadi land in the present suit was excluded from partition by the mutual consent of the parties and consequently the suit was not maintainable. The Trial Court dismissed the suti by its judgment and decree dated the 21st January, 1953 on the view that the area in dispute in the present suit did not seem to have been excluded from partition in the earlier suit for any specific reason and there was nothing to show that the parties had reserved their rights to get the same partitioned later on.

(2.) The plaintiffs filed a first appeal being Regular First Appeal No. 67 of 1953 in the High Court of Punjab at Simla. In this first appeal a compromise was arrived at between the plaintiffs and defendants 8 to 14. Eventually the High Court accepted the compromise and disposed of the appeal in terms thereof by its order dated the 16th September. 1954. A preliminary decree in terms of the compromise followed. At the instance of some of the plaintiffs and in accordance with the terms of the compromise, Chaudhary Pat Ram was appointed Commissioner to effect the actual partition on the spot for the preparation of the final decree. Proceedings went on before him for quite some time in which some of the defendants who were no parties to the compromise also took part. The Commissioner submitted his report. Several objections were filed on behalf of the parties to the Commissioner"s report. One of the main stands taken on behalf of the defendants who had not joined the compromise was that since they were not parties to the compromise and since no preliminary decree had been passed against them, no final decree either could be passed, the compromise entered into between the plaintiffs and defendants 8 to 14 had adversely affected their rights and the final decree on the basis of such compromise was affecting their interests in the suit lands. The Trial Court overruled all the objections and passed a final decree on the 28th October, 1962, (Sic). From the said decree Regular First Appeal Nos. 20 and 49 of 1958 were filed by some of the defendants. The High Court has taken the view that the terms of the compromise show that defendants 8 to 14 derived benefits under it at the cost of the remaining defendants who were not parties to the compromise. No compromise decree could be passed against the defendants who were not parties to the compromise nor was any ex parte preliminary decree passed against them by the High Court on the 16th September, 1954 in the earlier appeal. In absence of a preliminary decree, no final decree could be made against them. Hence this appeal.

(3.) Before we proceed to dispose of this appeal on merits, we may advert to one or two preliminary objections in regard to the abatement of the appeal on account of non-substitution of the legal representatives of some of the respondents and one of the appellants. We proceed to consider the question of substitution on the footing that the present suit was not a suit under Order I Rule 8 of the Code of Civil Procedure either by the plaintiffs or against the defendants. Although there has been some controversy in the courts below in this regard, parties were agreed before us that the correct position was the one we have just stated.