DAKHO PRASAD SINGH Vs. BAIJNATH SAH

JUDGEMENT

(1.) Defendants 1 to 4 are the appellants. The suit against the defendant No. 5 who is dead and defendants 6 to 9 who were described as defendants second party and are respondents 4 to 7 in this appeal was for declaration of plaintiffs1 title to and recovery of possession of the land in suit with damages. It was alleged that, in a proceeding under Section 145 of the Criminal P.C., which ended on the 28th January 1958, it was declared that the second party in that proceedings, who are defendants, first party (defendants 1 to 5) in the suit, was entitled to possession of the suit land. Plaintiffs claimed that they had title, and for that they were entitled to be in possession of the land in dispute and the possession of the defendants first party (defendants 1 to 5) was not justified in law and the order passed in their favour under Section 145 of the Criminal P.C., was illegal. While the suit was pending defendant No. 5 died on the 20th December 1958. Defendants 1 to 4, the remaining members of the defendants first patty, made an application on the 18th November 1959, stating that defendant No. 5 was dead and that, in the absence of substitution of his legal representatives in his place the whole suit had abated. The trial Court held that defendant No. 5 was interested in the suit property and his interest was inseparable His father was shown in Register D in respect of Tauzi No. 2290 in which the disputed land lies As there was no substitution, after the death of defendant No. 5, of his legal representatives, the learned Munsif held that the suit was not properly constituted in the absence of defendant No. 5's legal representatives and it was, therefore, dismissed. Against that the plaintiffs came in appeal to the Court below, where it was held that defendant No. 5 was really and in substance a pro forma defendant, and, if at all, the suit had abated only against his legal representatives. His heirs could be added if necessary as parties under Order 1, Rule 10 of the Civil P.C., and, in that view, the lower appellate Court thought that the whole suit had not abated and it remanded the suit for trial to the Court below. Against that, defendants 1 to 4 have come up in appeal to this Court.

(2.) The only point for consideration is whether, in the circumstances of the case, the suit can be said to have abated as a whole. Sub-section (6) of Section 145 of the Criminal P.C., lays down that, if the Magistrate decides that one of the parties was in possession of the subject matter of the proceeding, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law. In this case, admittedly, the final order under Sub-section (6) of Section 145 was to the effect that defendants 1 to 5 of the suit were entitled to possession of the land in dispute and they were entitled to retain their possession until evicted therefrom in due course of law. To get over this difficulty the plaintiffs brought the present suit to evict defendants 1 to 5 from the land. Learned Counsel appearing for the plaintiffs-respondents urged that defendants 1 to 4 belonged to one family Defendants 2 to 4 being., sons of defendant No. 1 and defendant No. 5 belonged to another family, although they descended from one common ancestor. That may be so, but all of them were members of the second party in the proceeding under Section 145, Criminal P.C. and all of them were held entitled to possession of the suit land. In other words, they were entitled to joint possession. Learned Counsel view our attention to Para, 2 of the plaint in which the plaintiffs stated that defendants 1 to 4 were members of the joint family and, as such they were impleaded as parties in the suit in the capacity of their being the representatives of their joint family. In regard to defendant No. 5, it was stated in that paragraph that he was agnate and helper of defendants 1 to 4. As, in the case under Section 145, Criminal P.C., against the decision of which the present suit was instituted, defendants 1 to 5 were placed in the category of second party, they were impleaded as defendants first party in the suit for self and as the head members and representatives of their respective families. As to the defendants second party in the suit, it was stated that they were not parties in the proceeding under Section 145, Criminal P.C., but as they used to take steps in the said proceeding as helpers and unauthorized persons, they were impleaded in the suit as pro forma defendants to avoid all disputes in future. In the relief portion, the plaintiffs asked for the declaration that the plaintiffs had absolute title to the disputed property, and that the defendants had no right or title to dispossess the plaintiffs or to keep possession and occupation over the property involved in the suit. They asked for a decree for recovery of possession in their favour by dispossessing the defendants. Their reliefs also included a prayer for manse profits against the defendants. It thus appears clearly that the entire suit was directed against defendants 1 to 5 and no distinction was made by the plaintiff in regard to any one of them, much less defendant No. 5.

(3.) On the death of defendant No. 5, his legal representatives remained entitled to possession of the suit and as ordered under Section 145(6), Criminal P.C. If the suit is allowed to proceed against defendants 1 to 4 only and, ultimately, decreed against them, the legal representatives of deceased defendant No. 5 will not be bound by that and their right to claim and retain possession over the disputed land will remain unassailed. In other words, the order under Section 145(6), Criminal P.C. declaring that the plaintiffs were not entitled to possession of the land and that defendant No. 5 along with defendants 1 to 4 was so entitled will remain good and unaffected, although in the present case, there may be a finding in that respect in favour of the plaintiffs and against defendants 1 to 4. This will lead to a very conflicting position which cannot be countenanced by the Court. If the interest of defendant No. 5 could have been shown to be separable from that of defendants 1 to 4 either as claimed in the case under Section 145, Criminal P.C or as found therein the position would have been different and the entire suit would not have abatqd even though defendant No. 5 was not substituted by his legal representatives after his death. Learned Counsel was not able to show that that was the position. In that view, it will be difficult to sustain the order passed by the lower appellate Court that the whole suit had not abated. It was wrong on its part to say that defendant No. 5 was really a pro forma defendant. There was no material to justify that inference.