NETAR Vs. JAGTA

JUDGEMENT

(1.) This appeal is directed against the decree and judgment passed by the learned Additional District Judge, Kangra on 31-8-1970, dismissing the appeal, on the solitary ground of the same having abated in its entirety.

(2.) Necessary facts relevant to decide this point may be stated. The respondent/ plaintiff filed a suit for the possession of land in suit which was decreed in his favour and against the appellants/defendants. An appeal was preferred against the decree and judgment passed by the trial Court. Chand, one of the appellants, during the pendency of the appeal died and his legal representatives were not brought on record within limitation. Accordingly, the learned Additional District Judge dismissed the appeal as having abated in its entirety. Aggrieved by the said judgment and decree, the appellants have preferred this appeal.

(3.) It is contended by the learned counsel for the appellants that the appeal has abated qua Chand alone and not against the present appellants. The learned counsel has placed reliance on a Full Bench judgment in Sant Singh v. Gulab Singh AIR 1928 Lah 572. The question of law, which was referred to a Full Bench, has been illustrated as follows : "X sells immovable property to A, B, C and D. In the sale-deed it is stated that the property has been sold to the vendees in equal shares. The reversioners of the vendor institute a suit for declaration that the sale shall not affect their reversionary rights after the vendor's death. The suit is dismissed and the plaintiffs appeal. During the pendency of the appeal A, one of the vendees, dies and as his representatives are not brought on the record within time the appeal abates as against A. Can the appeal proceed againt B, C and D, the surviving vendees-respondents, or must the abatement of the appeal as againt A result in a dismissal of the appeal in its entirety?" The relevant observations may be extracted : "Whether the appeal can, or cannot, proceed in the absence of the legal representatives of the deceased respondent must depend upon the nature of each case, and it is not possible to formulate a rule of general application. It is obvious that if the action, which has given rise to the appeal, could have been brought without impleading the person who has died, his death affects only the interest, if any, which he had in the litigation, but it cannot prevent the determination of the rest of the claim. This rule does not however, solve the problem in every case. The test often adopted in such cases is whether in the event of the appeal being allowed as against the remaining respondents there would or would not be two contradictory decrees in the same litigation with respect to the same subject-matter. It is matter of common sense that the Court should not be called upon to make two inconsistent decrees about the same property, and in order to avoid conflicting decrees the Court has no alternative but to dismiss the appeal as a whole. If, on the other hand, the success of the appeal would not lead to such a result, there is no valid reason why the Court should not hear the appeal and adjudicate upon the dispute between the parties who are before it. Now, in the present case, though there is one conveyance in favour of four persons; the share taken by each vendee is clearly specified in the deed. On principle there is no real distinction between one deed transferring the whole of the immovable property in equal shares to A, B, C and D, and four deeds, each conveying one-fourth share in the property, to the four vendees respectively. The death of A pending the appeal undoubtedly debars the Court of appeal from dealing with his share, but his absence does not prevent the Court from determining the controversy with respect to the shares of the remaining three vendees. There might be one decree as to A's share, and another decree of an inconsistent character governing the shares of the other vendees; but as these decrees do not affect the same property, there is no legal difficulty in giving effect to them. We are here not dealing with a case in which one decision settles the dispute one way, and another decision determines it in an entirely another way, with respect to the same matter, so that it becomes impossible for the Court to carry out both the decisions at the same time." Ultimately, the answer to the question was that the appeal in this case did not abate in toto and could proceed against B, C and D. This view was also followed in a Full Bench decision in Nanak v. Ahmad Ali, AIR 1946 Lah 399.