RUGMINI AMMA Vs. RAMAN PILLAI

JUDGEMENT

(1.) DEFENDANTS 1. 2 and 4 in a suit for declaration of title. possession. injunction restraining entry and for fixing the Northern boundary of the properly belonging to the plaintiff are the appellants. The plaint A schedule property has an extent of 1 acre 23 cents and the plaint B schedule property is the building situate in plaint A schedule property. The plaint A schedule property belonged to Kovil Vikikath Veedu. There was a partition ext. B1 in the year 1103 in that family. The plaintiff claimed title by virtue of subsequent assignments of the plaint A schedule property. The plaint A schedule property. according to the plaint. took in 33 cents in Sy. No. 165/3a and 90 cents in Sy. No. 165/3b. The suit was originally filed only against the first defendant. The first defendant contended that the plaintiff had title only to 32 cents in Sy. No. 165/3a and had no right or possession over any portion of the properly included insy. 165/3b. The first defendant also contended that other persons were interested in that survey number and without their being impleaded. the suit cannot be properly decided. Subsequent thereto defendants 2 and 4 were also impleaded by the plaintiff. DEFENDANTS 2 and 4 also questioned the title claimed by the plaintiff over Survey No. 165/3b. It can thus be seen that the contentions raised by defendants 2 and 4 were similar to those that were raised by the first defendant. The trial court dismissed the suit finding that the plaintiff has not established title or possession over Survey no. 165/3b. But on appeal by the plaintiff the lower appellate court held that the plaintiff has title and possession over a part of Sy. No. 165/3b. The suit was 1 therefore partly decreed by the lower appellate court with reference to the commissioner's plan Ext. C2 which was directed to be appended to the decree. The defendants 1. 2 and 4 filed this Second Appeal on 27-5-1988 challenging the decree passed by the lower appellate court. While the appeal was pending appellant No. 1 who was defendant No. 1 inthesuitdiedon 13-12-1989. The legal representatives of the deceased first appellant-1st defendant did not take steps to get themselves impleaded in the appeal in time. Appellants 2 and 3 defendants 2 and 4 also did not take any steps to implead the legal representatives of deceased first appellant within time. Applications were made before this court as C. M. P. Nos. 1916 to 1918 of 1991 by the legal representatives of the first appellant-first defendant to get themselves impleaded as additional appellants in the Second Appeal. By order dated 7-7-1992 the said applications were allowed by this court on terms. The legal representatives of the deceased first appellant-appellants 2 and 3 did not comply with the condition imposed by this court. This resulted in the rejection of those applications and though not striktly necessary. a further order was passed by this court on 25-9-1992 dismissing those applications. The result is that the decree of the lower appellate court as against the deceased first appellant-first defendant has become final.

(2.) AT the hearing it was submitted that in view of the fact that the Second Appeal has abated as against the first appellant- first defendant the entire appeal abates and that it cannot be proceeded with. This is controverted by the learned counsel for the surviving appellants-defendants 2 and 4 and it now falls to be considered as to whether the Second Appeal has abated or not.

(3.) I find considerable difficulty in reconciling the decision reported in Lai Chand's case with a clear proposition laid down by their Lordships of the Supreme Court in the decision reported in Rarneshwar prasad and others v. Shyam Beharilal Jagannath and others (A. I. R. 1963 SC 1901)where in their Lordships had categorically stated that Order 41 Rule 4 of the code could not be applied in a case where one among several appellants dies during the pendency of the appeal. After referring to the decisions of the various High Courts. their Lordships observed thus: "we do not consider it necessary to discuss the cases referred to at I he hearing. Suffice it to say that the majority of the high Courts have taken the correct view. . that the appellate Court has no power to proceed with the appeal and to reverse and vary the decree in favour of all the plaintiffs defendants under O. XLI. R. 4 when the decree proceeds on a ground common to all the plaintiffs or defendants. if all the plaintiffs or the defendants appeal from the decree and any of them dies and the appeal abates so far as he is concerned under O. XXII. R. 3". The decision of their Lordships in Rarneshwar Prasad's case is not seen to have been brought to their Lordships notice in decision in lai Chand's case. The effect of non-impleding of the legal representatives of one of the appellants who dies pending the appeal has been considered by his lordship Justice P. Subramonian Poti as he then was in S. A. No. 761 of 1968. reported as Short Notes in 1971 KLT SN 50. After considering the decisions of the Supreme Court reported in State of Punjab v. Nathu Ram (A. I. R. 1962 SC 89 ). Rameshwar Prasad v. Shambehari Lai (A. I. R. 1963 SC 1901) and the decision in ratan Lai Shah v. Firm Lamandas Chhadammalal and Ann (1969 (I) S. C. W. p. 978 )his Lordship Justice Poti. after quoting the following passage from Rameshwar prasad's case. namely: "it will be against the scheme of the Code to hold that R. 4 of 0. 41 empowered the Court to pass a decree in favour of the legal representatives of the deceased Kedar Nath on hearing an appeal by the surviving appellants even though the decree against him has become final" held as follows: "that will not be the case where all the plaintiffs or defendants. as the cast; may be. have jointly filed the appeal. In such a case on the death of any one or more of the appellants. the surviving appellants cannot seek-to obtain a decree reversing or varying the decree in favour of all the plaintiffs or defendants. as she case may be. It would also follow that if there cannot be a decree varying the decree in its entirety the surviving appellants cannot obtain a decree for themselves in the appeal reversing or modifying the decree of the lower court. That is. because. it would then mean a different decision in their favour in the appeal than the one reached or deemed to have been reached in regard to the appellant an against who the appeal abates. It lead to conflicting decisions". In the light of the decision in Rameshwar Prasad's easel am in respectful agreement with the views expressed by His Lordship Justice subramonian Poti. In the light of the decision reported in Rameshwar Prasad's case rendered by three learned judges. it is not possible for this court to follow the decision reported in Lai Chand's case rendered by two learned judges. in view of the consistent view expressed by the Supreme Court that in the case of conflict between two decisions of the Supreme Court. this court has to follow the decision that is rendered by more number of Judges. (See State of u. P. v. Ram Chandra. A. I. R. 1976 S. C. 2547 ).