SARASWATHI AMMA AND ORS. Vs. MADHAVAN NAIR

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 property 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 Vilakathu Veedu. The was a partition Ext. E -1 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 property included, "in 3y. 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 Sy. 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 therefore partly decreed by the lower appellate Court with reference to the commissioner's plan Ext. C -2 which was directed to be appended to the decree. The Defendants 1, 1 and 4 filed this Second Appeal on 27th May 1988 challenging the decree passed by the lower appellate. Court -While the appeal was pending Appellant No. 1 who was Defendant No. 1 in the suit died on 13th December 1989. The legal representative 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 7th July 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 strictly necessary, a further order was passed by this Court on 25th September 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.) THE learned Counsel for the Appellant placed considerable reliance on the decision of the Supreme Court in Lal Chand v. Radha Kishan : A.I.R. 1977 S.C. 789 to contend that notwithstanding the fact that the deceased first Defendant was a party Appellant in the Second Appeal and notwithstanding the fact that his legal representatives were not impleaded in the Second Appeal, the Second. Appeal could be maintained by the surviving Appellants that is Defendants 2 and 4 by invoking Rule 4 of Order 41 of the Code of Civil Procedure. He points out that in the case before the Supreme Court one of the Appellants had died while the appeal was pending before the low Appellate Court and it was found that nothing survives to his legal representatives since he was only a statutory tenant and that therefore the legal representatives could not be impleaded. Thereafter it was held by the appellate Court that even as against the two other Appellants who denied the claim for eviction made by the landlord it could hot proceed with the appeal in view of the death of one of the Appellants and the inability to implead the legal representatives of that Appellant. The High Court also affirmed that decision and when the matter was taken to the Supreme Court, their Lordships applied Order 41, Rule 4 of the Code of Civil Procedure to hold that the appeal before the appellate Court could be continued notwithstanding the death of one of the Appellant and the non -impleading of his legal representatives. The learned Counsel for the Appellant specifically refers to paragraph 8 of the judgment wherein it has been held by the Supreme Court as follows: