SANTOSH KUMAR MONDAL Vs. NANDALAL CHAKRAPANI

JUDGEMENT

(1.) In the suit out of which this reference arises, plaintiffs claimed declaration order their title to C.S. Plot No. 105 of mouza Gournagar, for recovery of possession of the suit land and for damages for cutting and taking away peas and bamboos grown on it. Defendants filed written statements denying plaintiffs' title to the suit land, and alleging that by amicable partition amongst defendants Nos. 1 to 6 collectively referred to as Chakrapani defendants, the suit land was allotted exclusively to defendant No. 3 who thereafter sold it to defendants Nos. 7 to 10. The trial Court found that plaintiffs were entitled to the suit land and that defendants had jointly dispossessed plaintiffs and were liable to pay Rs.192/- as damages and on these findings decreed the suit. The decree of the trial Court proceeded on grounds common to all the impleading plaintiffs as respondents to the appeal. During the pendency of the appeal, on July 26, 1953, defendant appellant No. 2 Bato Krishna Chakrapani died, but his legal representative was not brought on the record, and his death was not brought to the notice of the appellate Court. On December 4, 1953 the appellate Court held that plaintiffs had failed to prove their title to or possession of the suit land, and on this finding set aside the decree of the trial Court, and dismissed the suit. Plaintiffs have appealed to this Court imleading as respondents to the appeal all surviving defendants as also the legal representative of Bato Krishna. On the merits there is no ground for interference with the decision of the lower Court. But plaintiffs urge that in view of the death of Bato Krishna, and the omission to bring his legal representative on the record the appeal abated as far as he was concerned, and that as he was a necessary party, the appeal as a whole abated, and consequently the appellate decree is void and without jurisdiction. Having regard to conflict of judicial opinion on the point, the Division Bench referred the appeal to the Full Bench and has formulated the following questions of law: "(1) Where there are more plaintiffs or more defendants than one in a suit and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants and all or several of the plaintiffs or defendants appeal against the decree, can the appellate Court in view of the provisions of order 41, Rule 4, C.P.C. proceed with the appeal and reverse the decree of the trial Court in spite of the omission to bring on the record the heirs of one of the appellants who dies during the pendency of the appeal?" "(2) Were the cases Baloram Paul v. Kanysha Mashi, AIR 1919 Cal 410 and Naimuddin Biswas v. Maniruddin Laskar, 32 Cal WN 299 : (AIR 1928 Cal 184), correctly decided?"

(2.) Before us Mr. Guha representing some respondents contended that (1) on the death of Bato Krishna the right of appeal survived to the surviving appellant alone and in view of Order 22 and Rules 2 and 11 C.P.C. the appeal did not abate either wholly or in part, (2) even if it be held that the appeal abated so far as Bato Krishna was concerned the appellate Court could in view of Order 41 Rule 4 C.P.C. set aside the whole decree appealed from, and (3) assuming that the entire decree could not be set aside the appellate Court could set aside the decree so far as it affected the surviving appellants. In my judgment the first contention ought to be rejected, but the second contention ought to succeed, and accordingly the third contention does not arise for consideration.

(3.) Under Order 41 Rule 4, C.P.C. any one of the defendant alone may appeal from the whole decree, and not merely from that part of the decree which affects him alone where, as in this case, the decree proceeds on grounds common to all the defendants, and in such ** appeal the appellate Court may reverse or vary the decree appealed from in favour of all the defendants. Order 41 Rr. 4 and 33 C.P.C. read together empower the Court to reverse or vary the decree in favour of a defendant who is not a party to the appeal, see Dasarathi Patel v. Brojo Mohan, 18 Cal LJ 621, Kamalakanta Debnath v. Tamijuddin, AIR 1935 Cal 24 : ILR 61 Cal 919, Mt. Parwati Kuer v. Manna Lal Khetan, (S) AIR 1956 Pat 414 (FB), Misri Lal Nayak v. Mt. Surji, AIR 1950 PC 28 : 54 Cal WN 508.