BAIJ NATH Vs. RAM BHAROSE

JUDGEMENT

(1.) The question which has been referred by a learned single Judge of this Court to the Full Bench is as follows: " If, in a suit, a plaintiff makes a claim against a number of defendants on common grounds and all the defendants also contest the suit on common grounds and the suit is decided in favour of the plaintiff against all the defendants, can an appeal filed by all the defendants be heard in favour of the remaining defendants after one of the appealing defendants has died during the pendency of the appeal and his legal representatives have not been brought on the record so that his appeal has abated and further, if the appeal of the remaining defendants can be heard, would the decision in it enure to the benefit of the legal representatives of the deceased defendant-appellant?"

(2.) In order to understand precisely how the point has arisen, it is desirable to give a few facts relating to these cases. The principal defendants in the suit out of which the two appeals arise were Braj Bhukhan (now dead), Baij Nath and Bhairon. The plaintiffs' suit was for possession of property alleged to have been taken wrongly into their possession by the defendants Braj Bhukhan, Baij Nath and Bhairon. The case put forward by the plaintiff-respondents was that in a partition the plots over which they were claiming possession were allotted to pattis Bhagwan Dutt and Dudhnath and that they were the proprietors of those pattis. Their case further was that in pursuance of that partition decree they obtained delivery of possession over the plots in the year 1937. Despite the decree in their favour at that time, however, some of these plots continued in possession of the defendants, so that the delivery of possession in respect of them was merely of a formal character. In these circumstances, the plaintiff-respondents had to bring a suit and in execution of the decree passed in that case, they were able to obtain actual possession over the plots over which delivery had actually not been given, some of the plots having been actually delivered at the time of delivery of possession in 1937. Thus their case was that after the decree in that suit had been executed in respect of some of the plots, they came into possession of all the plots in dispute. It is alleged by the plaintiffs that in June 1942 they were dispossessed from all these plots by the three defendants Braj Bhukhan, Baij Nath and Bhairon. Consequently the suit out of which these two appeals arise was brought by them for possession.

(3.) The suit was resisted by the defendants on grounds common to them all. A Joint written statement was filed. The first plea taken by them was that the plots appertained to patti Braj Bhukhan of which the three defendants were the proprietors and did not appertain either to patti Bhagwan Dutt or to patti Dudhnath. It may be pointed out that from para. 16 of their written statement it appears that their case was that they were holding possession of the plots separately and that their rights too were separate. In other words their case was that they were not joint tenants, but tenants in common, i.e. tenants with separate and separable interests in the property. The second line of defence was that the three defendants had, in any case, been in possession of them for more than 12 years before the institution of the suit and had for that reason perfected their title by adverse possession. A third line of defence was that the suit was barred by limitation as the plaintiffs had been dispossessed more than three years before the institution of the suit, the period of limitation for a suit for possession under Section 180, U. P. Tenancy Act, being only three years. On the question as to whether the defendant; were holding possession on the plots separately and their rights were separate, no issue seems to have been framed by the learned Munsif. On all the points raised the findings of the lower appellate Court were in favour of the plaintiff-respondents and against the defendants. Thereafter the present three defendants, viz, Braj Bhukhan, Baij Nath and Bhairon preferred the present appeals to this Court. During their pendency one of the defendant-appellants Braj Bhukhan died. An attempt was made by his heirs and legal representatives to have themselves brought on the record, but it proved abortive a, this Court held that their application for substitution had been filed beyond time, it having been further held that the legal representatives left by Braj Bhukhan were not on the record. On these findings this Court passed an order declaring the appeal in 10 far as it affected Braj Bhukhan to have abated.