KALI DAYAL BHATTACHARJEE Vs. NAGENDRA NATH PAKRASHI

JUDGEMENT

(1.) This is an appeal by the defendants in a suit for declaration of title to immoveable property. The case for the plaintiffs is that there were disturbances in connection with the lands in suit which led to the institution of proceedings under Section 145, Criminal Procedure Code : with the result that, on the 24th July 1910, the Criminal Court made an order of attachment under Section 146, Criminal Procedure Code, to remain in force until the title to the lands was declared by a Civil Court of competent jurisdiction. A Accordingly, on the 28th September 1910, the plaintiffs instituted the present suit for declaration that the disputed lands appertained in Zemindary right, and right acquired by adverse possession, to their property known as Thal Chur or as Khas Thal Mouza. The defendants repudiated all the material allegations in the plaint. After a protracted trial in the Court below, the suit was decreed by the Subordinate Judge. The decree in favour of the plaintiffs was in the following terms: "The title of the plaintiffs is declared to the entire lands included in the survey map of Mouza Chur Thal alias Khas Thal in claim, and also to such quantity of land as is shown in the map of the Commissioner as included in the survey of Mouza Khas Thal and lies within the lands claimed." The present appeal by the defendants is directed against this decree. The appeal was heard for several days and the respondents were called upon to answer the arguments advanced on behalf of the appellants. It then transpired that Lal Mohan Pakrashi, one of the plaintiffs respondents, had died in November 1915, and that adequate steps had not been taken to revive the appeal as against his representatives-in-interest, Lal Mohan Pakrashi has left a widow, three sons and two grandsons by a predeceased son. No application was made by the appellants to bring on the record the legal representatives of the deceased respondent within the time allowed by law, that is, within a period of six months from the date of the death of the deceased respondent, under Article 177 of the First Schedule to the Indian Limitation Act, 1908. The con-sequence was that under Order XXII, Rule 4, sub-Rule 3 of the Code of Civil Procedure, 1908, read with Rule 11, the appeal abated as against the deceased respondent. On the 23rd February 1917, an application was made to this Court to bring on the record the three sons of the deceased respondent. This was not made in the form of an application to set aside the abatement as contemplated by Order XXII, Rule 9, sub-rule. (2), It was also made beyond the time prescribed by Article 171 of the First Schedule to the Indian Limitation Act, 1908, that is, after the expiry of days from the date of abatement. The application was made ex parte and was based on an affidavit which contained an untrue statement, namely, that Lal Mohan Pakrashi had died in November 1916. If he had really died in November 1916, the six months prescribed by Article 177 of the Indian Limitation Act would have expired in May 1917 and consequently no question of limitation could possibly arise in respect of an application made on the 23rd February 1917. The result of the misstatement was that the application was granted as a matter of course. This was brought to the notice of the Court on behalf of the respondents when they were called upon to answer the arguments of the appellants. The position thus was that two of the representatives of Lal Mohan Pakrashi, namely, his two grandsons by a predeceased son, were not on the record, while the names of his three sons had been placed on the record, on the basis of an untrue statement contained in the affidavit filed in support of the application for" substitution. An attempt was subsequently made to induce this Court to bring on the record the two grandsons by the predeceased son. The explanation offered for the delay was, however, unsatisfactory, and under Order XXII, Rule 9, Sub-rule (3), which makes the provisions of Section 5 of the Indian Limitation Act applicable, no order could be made in favour of the applicants, as they had failed to satisfy the Court that they bad sufficient cause for not making the application within the prescribed time. We accordingly directed, on the 2nd July last, that the ex parte order made on the 23rd February 1917, on the basis of an untrue statement be cancelled, and, further, that the application to bring on the record the grandsons by the predeceased son be refused. The position accordingly is that the appeal has abated as regards Lal Mohan Pakrashi, and the application to revive the appeal against his representatives has failed. The appeal has now been taken up for final disposal.

(2.) On behalf of the respondents, a preliminary objection has been taken that in the events which have happened the appeal cannot proceed and must be dismissed. It is conceded that under the provisions of Order XXII, Rule 4, read with Rule 11 the appeal has abated only as against the deceased respondent. Consequently, we have to determine whether, in view of the nature of the suit, such partial abatement has made it impossible for the Court to hear the appeal as against the other respondents, and, if necessary, to reverse the decision of the trial Court in their favour, The respondents have contended that this question should be answered in the affirmative, in view of the decisions in Bejoy Gopal Bose v. Umesh Chandra Boss 6 C.W.N. 196; Tarip Dafadar v. Khoterunnessa Bibi 10 C.W.N. 981; Dharamjit Narayan Singh v. Chandeshwar Prosad Narayan Singh 11 C.W.N 504 : 5 C.L.J.393; Basir Sheikh v. Fazle Karim 28 Ind. Cas 703 : 19 C.W.N. 290; Azimuddin Mandal v. Tara Sankar Ghose 47 Ind. Cas. 638 : 28 C.L.J. 201 and Sriram Chandra Naik v. Hridoy Nath Gupta 51 Ind. Cas. 409 : 29 C.L.J. 461. The appellan s have, on the other hand, invited ourattention to the cases of Chandarsang v. Khimabhai 22 B. 718 and Upendra Kumar Chakravarti v. Sham Lal Mandal 34 C. 1020 : 11 C.W.N. 1100 : 6 C.L.J. 715 which it is urged support the contrary view. In Beioy Gopal Bose v. Umesh Chandra Rose 6 C.W.N. 196 and Turip Dafadar v. Khoteiannessa Bibi 10 C.W.N. 981 the question arose as to the effect of the death of one of several plaintiffs respondents in an appeal preferred against a joint decree for arrears of rent, in favour of all the plaintiffs. In both these cases, the Court held that the appeal could not proceed for defect of parties. In the first ease Mr. Justice Banerjee pointed out that if the appeal were heard and allowed on the merits, the result would be that the decree would be set aside in respect of some of the plaintiffs, but would remain intact in so far as the representatives of the deceased plaintiff were concerned. The decree was a joint decree in favour of all the plaintiffs and if the defendant desired to question the correctness of that decree, he was bound to bring before the Court all the parties affected by that decree. In the second case, Mr. Justice Rampini adopted the sains view and dismissed the appeal, as it could not proceed by reason . of defect of parties. Mr. Justice Rampini,, however, in the case of Upendra Kumar Chakra arli v. Sham Lal Mandal 34 C. 1020 : 11 C.W.N.. 1100 : 6 C.L.J. 715 took : a different view on the Authority of the decision in Chandra sang v. Khimabhai 22 B. 718. No reasons were assigned in support of the conclusion and the earlier decisions were not brought to the notice of the . Court. We observe that in that case a question was raised as to the area and the amount of rent annually payable in respect of the holding. The Court dismissed the appeal on the merits : but if the appeal had succeeded, the result would have been two contradictory decisions in the same suit in respect of the same matter, namely, the terms and conditions of the tenancy, one given by the lower Appellate Court in favour of the deceased plaintiff which would enure to the benefit of his representatives-in-interest, the other given by the High Court in favour of the successful appellant.

(3.) The case of Dharamjit Naraym Singh v. Chandeshwar Prosad Narayan Singh 34 C. 1020 : 11 C.W.N. 1100 : 6 C.L.J. 715 arose out of a suit for the cancellation of a sale for arrears of land revenue, The trial Court set aside the sale. During the pendency of an appeal to this Court, two of the plaintiffs-respondents died. No application was made to bring their legal representatives on the record within the prescribed period. The Court held that the appeal could not proceed. Mr. Justice Harrington applied the test, whether the suit would have been tried, if the deceased persons had not been joined either as plaintiffs or as defendants. He held that the suit could not have been tried in their absence, and that consequently the appeal also could not be decided in the absence of their legal representatives. The decree could not be reversed and the sale directed to stand in respect of some of the plaintiffs, while the: decree for cancellation made by the primary Court would remain in operation as regards the others. The Court further declined to accede to the contention that the share of the plaintiffs other than those of the deceased persons could be vacated by an order of this Court. The contention was negatived on the ground that as the decree under appeal had Set aside the sale of the entire joint estate, under no circumstances could that be affirmed as to the unascertained shares of some joint shareholders and reversed as to the unascertained shares of other joint shareholders.