STATE OF HYDERABAD Vs. MOHAMMAD AFZAL

JUDGEMENT

(1.) Mr. Jalil Ahmed for the respondent in this appeal, raised a preliminary objection as to the maintainability of this appeal on the ground that since two of the respondents, namely, respondents 5 and 6, died and the appeal has abated against them, the whole of the appeal will abate against all the other respondents.

(2.) In order to understand the significance of this objection, it is necessary to state a few facts. The respondents are the owners of two survey numbers, 34/1 and 34/2, which are makthas or crown grants, known by the names of Mohd. Fiyazi, and Modlam respectively situated in Boinapalli village. In 1924, the then Nizams Government requisitioned the property on behalf of the Indian Army for building a new range for Musketery Practice. The Makiedars made several representations for several years, and ultimately the Government decided to acquire the same under the Hyderabad Land Acquisition Act, in or about 1351 F (1941-42 A. D.). This decision was implemented by the issue of a notification under Section 5 of the Hyderabad Land Acquisition Act, published in the Gazette No. 26 Part I dated 7-7-1366 F. (1947 A. D.). The claimants-maktedars submitted an application on 16-5-1950 claiming compensation for Ac. 98-00 of land and for abhkari trees at the rate of Rs. 1200 an acre. The Collector however awarded compensation at the rate of Rs. 200 per acre on the ground that the land was already in the occupation of the Government in 1924 and that the claimants had confirmed that position, BO that the compensation which the claimants were entitled to was the value of the land at the time when the initial possession was taken in 1924. The Collector stated that the fact that the claimants applied for determination and payment of reasonable compensation implies their consent to the action taken by the Government in taking possession of the property. Therefore, the valuation of the land will have to be assessed on the basis of the rates prevalent at the time of taking over possession. At this rate and adding the cost of trees and 15 per cent solatium, he awarded compensation of Rs. 22,798-12-0 as compensation for 89 acres and 5 guntas, which according to the Collector was the extent of land acquired by the Government, In appeal, the District Judge found that the extent of the land was Ac, 98-10 guntas and awarded compensation at the rate of Rs. 1000 per acre. He also allowed compensation for 200 toddy trees at Rs. 10 per tree and 600 Sendhi trees at Rs. 4 per tree. He also allowed disturbance charges at 15 per cent and interest at 6 per cent per annum. It was directed that the amounts should be distributed to the plaintiffs according to the shares specified in the plaint.

(3.) On these facts, the question before us is whether the appeal survives after the abatement against respondents 5 and 6. It is in our view unnecessary to review exhaustively the number of cases on this point decided by the various High Courts having regard to the authoritative pronouncement of their Lordships of the Supreme Court in State of Punjab v. Nathu Ram, (19611 2 SCJ 637= (AIR 1962 SC 89). In that case, the test that has been laid down is stated by Raghubar Dayal, J., at page 836 (of SCJ) = (at p 90 of AIR) in this way: "The question whether a Court can deal with such matters or not, will depend on the facts of each case and therefore no exhaustive statement can be made about the circumstances when this is possible or is not possible. It may, however, be stated that ordinarily the considerations which weigh with the Court in deciding upon this question are whether the appeal between the appellants and the respondents other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the Court. The test to determine this has been described in diverse forms. Courts will not proceed with an appeal (a) when the success of the appeals may lead to the Courts coming to a decision which would be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the Courts passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the Court and (c) when the decree against the surviving respondents, if the appeal succeeds, will be ineffective, that is to say, it could not be successfully executed. There has been no divergence between the Courts about the Courts proceeding with the appeal between the respondents other than the deceased respondent, when the decree in appeal was not a joint decree in favour of all the respondents. The abatement of the appeal against the deceased respondent, in such a case, would make the decree in his favour alone final, and this can in no circumstances have a repercussion on the decision of the controversy between the appellant and the other decree-holders or on the execution of the ultimate decree between them."