JAI SINGH Vs. HIRA SINGH

JUDGEMENT

(1.) THIS second appeal has been filed by the plaintiffs whose suit for declaration of their Khatedari rights to the extent of 266 Bighas out of 2000 Bighas held jointly by the respondents as well as for setting aside the mutation proceedings, decided in favour of the respondents, was dismissed by the trial court and an appeal against the said order to the learned Additional Commissioner failed and ordered to abate in full on the ground that the appellant did not take necessary steps to implead the legal representatives of one of the respondents namely Tehil Singh within the statutory period of ninety days.

(2.) THE contention of the learned counsel for appellants is that the learned lower court did not apply its mind correctly to the provisions of O. 22 R. 4 and his decision that the appeal abated in toto was unwarranted by law. It was pointed out on the authority of 1933 Lahore Page 556 and 1930 Lahore 126 that an appeal would not abate in toto if the rights and title of one of the deceased defendants in the claim under dispute could have been ascertained or capable of being ascertained on the basis of the pleadings or the evidence on record. In order to appreciate the force of this contention we have looked into the plaint as well as the statements of the plaintiff-appellant and some of the witnesses. THE plaintiffs' claim in the trial court was that their ancestors had purchased the cultivatory rights in respect of 2000 Bighas of land sometime in Svt. 1962-1963 for a consideration of Rs. 1500/-, being the amount of arrears of land revenue paid by them to the State in respect of this land; that out of this 1500/-rupees a sum of Rs. 200/-, being the share of the plaintiffs or their ancestors was contributed towards the said amount and in return they were allowed to keep about 266 Bighas of land for purposes of cultivation and the rest of the land was left out in possession of the respondents or their ancestors. It was stated that during the Record and Settlement operations the respondents in collusion with the revenue officials got the mutation sanctioned in their name in respect of the land under dispute except 78 Bighas 8 Biswas left out in the name of the appellants. THE suit was of course contested on several counts by the defendants respondents. THE trial court after framing certain issues held that the plaintiffs appellants failed to prove their claim. While coming to this finding it observed that the land held by the respondents was in their joint possession. An appeal was lodged by the plaintiffs appellants before the learned Additional Commissioner and during the pendency of the appeal one of the respondents Tehil Singh died. THE appellants did not admittedly take any steps to bring legal representatives of the deceased respondent on record within the prescribed period of limitation. THE learned lower court, therefore, held that as the suit was in respect of declaration of a Chak of the holding held jointly by all the defendants including the one who died and whose legal representatives were not on the record, it was hit by the provisions of O. 22, R. 4 and the appeal abated in toto. Both the counsel cited several decisions of the High Courts wherein the scope of the application of O. 22 R. 4 C. P. C. was discussed at some length. THE real test to see whether the suit or appeal abates as a whole or only in part is to find out if the suit could, in the first instance have been instituted and prosecuted with the deceased defendant left out. In other words, if separate suits are maintainable against the defendants severally, then the abatement will be only in part inspite of the other defendants having been impleaded in the same suit. On the above well known principles the non-impleading of the legal representative of a deceased defendant will result in total failure of the suit or appeal where the interests of the defendants in the suit are joint and indivisible so that the interest of the deceased defendant cannot be separated from those of the rest. Even in cases where the plaintiff could have asked for a joint and several relief, if he chooses to ask for a joint relief and on dismissal of the suit he files an appeal, the appeal will abate in toto on the death of one of the defendant-respondent if his legal representatives are not brought on the record in time. In the present case it is clear beyond doubt that the plaintiff filed the suit against the defendants whom he styled as joint owners in possession of the suit land. THE decree, therefore, if the plaintiffs' suit would have succeeded, could have been given against all the defendants including the deceased defendant in respect of the share claimed by the plaintiffs out of the joint holding in occupation of the respondent. THE fact that one of the defendants died and no legal representative was brought on the record in time is not disputed yet it is prayed that we might allow the appeal to abate only in respect of the share of the deceased defendant and dispose of the plaintiffs' claim against the remaining defendants. This, in our opinion, is clearly contrary to the provisions of O. 22 R. 4 and militates against the general rule of law that such a decision might lead to contradictory or inconsistent decrees. An attempt was made by the learned counsel (or the appellant to suggest that before coming to any finding against him, the lower appellate court should have made certain enquiries about the fact whether the suit land was held jointly by the respondents and whether the share of each of the defendants including the deceased defendant was ascertainable. No such further enquiry was indicated in the present proceedings as the statements recorded by the trial court are clear on this point. In fact the plaintiffs' pleadings precede these very assumptions namely that the suit land was held jointly by the respondents including the defendants. In the circumstances, we see no justification to interfere with the decision given by the lower appellate court. Accordingly,'we dismiss the appeal. .