RAJA HIMANSHUDHAR SINGH Vs. RAM HITKARI

JUDGEMENT

(1.) This appeal arising out of dismissal of the appellant's suit for possession over a land came up for hearing before our brother Jagdish Sahas and he has referred it to a larger bench on account of conflict among decisions of this Court on the question arising in it, namely, whether a suit for possession can be decreed against some of the trespassers when the others are not before the Court. The short facts of this case are as follows:

(2.) The appellant filed a suit against six persons including Ayodhya under Section 209 of the Zamindari Abolition and Land Reforms Act for their ejectment from a grove alleging that he was the grove-holder of the plot in dispute, that the defendants threatened to take possession of it without any right or title, that proceedings under Section 145, Cr. P. C. that arose out of the dispute end ed in their favour and that possession over the plot was delivered to them on 18-7-1953. There was nothing alleged about the defendants having acted jointly or in con cert or having a common cause against the appellant. The suit was contested by three of the defendants and the other three defendants including Ayodhya remained ex parte, Four of the defendants including Ayodhya were brothers and their, relationship or connection with the remaining two defendants is not known. The contesting defendants plead ed that the grove was planted by their ancestors and had been in their possession since long and that the plaintiff- appellant was never in possession and had no title over It I Ayodhya defendant died on 23-5-1956 during the pendency of the suit and on 25-5-1956 the suit was dismissed by the Trial Court on merits without Ayodhya's legal representatives having been brought on the record. The appellant filed an appeal on 26-7-1956 impleading all the six defendants: presumably he was not aware of the death of Ayodhya. When he became aware of it he applied on 1-10-1956 for his legal representatives being brought on the record. On 17-11-1956 he withdrew the application; it is not Known why. On 23-2-1957 the appellate Court dismissed the whole appeal as incompetent. Then he filed this second appeal. The question before us is whether the lower Appellate Court was right in saying that the first appeal was incompetent. It is not in dispute that it abated as against Ayodhya; the question is whether as against the other respondents it was incompetent on account of its abatement as against Ayodhya.

(3.) Though there are discordant notes struck by some Judges it cannot be disputed that the appeal did not abate as against the other defendants. Abatement of an appeal is governed by the provisions regarding abatement of suits in Order 22, C. P. C. Rule 4 of Order 22 deals with the death of one defendant out of two or more when the right to sue does not survive against the surviving defendants; if no application is made within the prescribed time for bringing on the record the legal representatives of the deceased defendant "the suit shall abate as against the deceased defendant" and cannot abate against the other defendants. A suit may fail against the other defendants on other grounds but it cannot abate as against them. If under a statute a suit cannot be filed without joining the deceased defendant, it will fail not on the ground that that it abates but on the ground that it is not maintainable under the law unless he or his successors-in-interest is impleaded. It has been made clear in Shibban v. Allah Mehar, AIR 1934 All 716, Mt. Ram Dei v. Jurawan Missi, AIR 1930 All 762, Mohan Singh v. Moti Singh, 1960 All LJ 932 and Shivamrathi Kunwar v. Dharam Deo Singh, 1951 All WR (HC) 94 : (AIR 1951 All 428), that a smt abates only against the deceased defendant and cannot abate against surviving defendants. In Roopchand v. Mithalal, AIR 1959 Raj 17, Waris Khan v. Ahmadulla Khan, AIR 1952 Nag 238, Aravinda Sarma v. Payodhar Barua, 53 Cal WN 606 : (AIR 1950 Assam 53), Hakir Mahamed v. Abdul Majid, AIR 1953 Cal 588, Malobi v. Gaus Mohamad, AIR 1949 Nag 91, Reghu Sutar v. Nrusingha, AIR 1959 Orissa 148 and Chhotalal v. Fakirji, AIR 1954 Nag 279, it was said that the whole suit or appeal abates; this is a clearly untenable view.