SUGRIVA SINGH Vs. GULAB SINGH

JUDGEMENT

(1.) THIS is Plaintiff's appeal arising out of a suit for declaration and damages and in the alternative for possession on the allegations that the Plaintiffs are the joint sirdars of the land in dispute. The Defendants had contested the suit on the ground that they were joint adhivasis and sirdars of the land in dispute. The trial court had decreed the suit while the lower appellate court reversed that finding. An application under Section 3 of the U.P. Consolidation of Holdings Act (Civil Misc. No. 12250 of 1972) has been made in the appeal for ordering that the appeal and the suit have abated under Section 5 of the aforesaid Act. This prayer was resisted on behalf of the Respondents on the ground that the appeal had already abated for want of substitution of the heirs of some of the deceased Appellants and one deceased Respondent namely, Gulab Singh. A rejoinder affidavit has been filed on behalf of the Appellants to the effect that the heirs of some of the Appellants had already been brought on the record and that Gulab Singh died heirless and can be represented by the Respondents already on the record. It has not been disputed that Arjun Singh Appellant No. 3 died in 1971 and the application for substitution of his heirs was rejected on 17 -2 -1971 as it was barred by time. It has also not been disputed that the heirs of Markandey Singh Appellant No. 6 too could not be substituted. Markandey Singh is said to have died in the year 1972. Unfortunately the date of his death is not given. The relevant notification under Section 4(2) bringing the area under Consolidation operation was issued in the Gazette. Even if we do not take into consideration the case of Markandey Singh Appellant No. 6 and Gulab Singh Respondent No. 1, the entire appeal had abated on the death of Arjun Singh Appellant No. 3 after failure to bring his heirs on the record. Admittedly all the Appellants claimed to be the joint sirdars. The decree of the lower appellate court had thus become final against one of the joint claimants. It was not possible to pass another inconsistent decree in favour of the remaining Appellants. It was so held by the Supreme Court in the case of State of Punjab v. Nathu Ram : AIR 1962 SC 89. A similar view was taken by the Supreme Court in the case of Rameshwar Pd. v. Shyam Behari, AIR 1973 SC 1901 in which it was held that when the claim was joint and the appeal abated against one of the Appellants, the entire appeal would be deemed to have abated.

(2.) LEARNED Counsel for the Appellants has argued that Appellants 1 to 6 were real brothers and as such the deceased brothers could be represented by the surviving brothers. I do not agree with this contention as in the present case, it is not disputed that the deceased left their heirs who were necessary parties to the suit and should have been brought on the record.