Judgement JUDGMENT:- Title Suit No.57 of 1964 filed by Hanuman Prasad Chowkhani and his mother Saraswati Devi Chowkhani against Devendra Chandra Paul Sonari, Ananta Paul Sonari and Birendra Paul Sonari for khas possession of a house by ejecting the defendants and for recovery of Rs.405/- on account of arrears of rent and compensation, was decreed by the Munsiff, Dibrugarh, by his judgment dated 29th Septemher, 1966. An appeal filed by the three defendants against the decree of the trial Court was allowed by the Assistant District Judge, Dibrugarh on 25th September, 1967, and the suit of the plaintiffs was dismissed with costs. 2. The plaintiffs thereupon filed the present second appeal in this court on 19th December, 1967. The respondent No.2, Ananta Kumar Paul, died sometime in November, 1970, and the application made by the appellants for bringing his legal representatives on the record on setting aside the abatement was dismissed on 9-6-72. On the same date it was directed that the appeal should be fixed for determining whether it could proceed against respondents Nos.1 and 3 and this order will decide that question. 3. To appreciate the arguments addressed in this Court bearing on that question it is necessary that the pleadings of the parties should be briefly set out. The plaintiffs had come to the Court on the allegations that their predecessor Jowaladutt Chowkhani had let out the house in dispute to the defendant No.1 Devendra Chandra Paul on a monthly rent of Rs.45 on the express condition that he would not sub-let it, that much against that term of the lease that defendant sub-let the house to the defendants 2 and 3, Ananta Paul and Birendra Paul, and that the defendants were liable to eviction for the double reason of non-payment of rent and the sub-lease created by defendant No.1 in favour of the other defendants. It was alleged that notices of ejectment had been issued to the three defendants and the same had been served on them. The three defendants resisted the suit by denying the various allegations made in the plaint. It was alleged that notices of ejectment had been issued to the three defendants and the same had been served on them. The three defendants resisted the suit by denying the various allegations made in the plaint. Their defence was that they are all members of Dayabhaga Hindu Undivided Family, that defendant No.1 is the karta of that family, that they have been in occupation of the house as tenants for a period of 30 years, and that the allegations that the defendant No.1 was a tenant and that he had sub-let the premises to the other two defendants was false. It was pleaded that the plaintiffs having failed to receive the rent offered, the same had been deposited in their account and so they (the defendants) were not in arrears. The validity of the ejectment notices allegedly issued by the plaintiffs was denied. 4. The trial Court settled as many as seven issues between the parties but it failed to frame any specific issue arising out of the plaintiffs allegations (which were denied by the defendants) that the house had been let out only to defendant No.1 and that the latter had sub-leased it to defendants 2 and 3. While discussing the validity of the amount deposited by Devendra Paul and Ananta Paul to the credit of the plaintiffs on account of rent, the trial Court held that Ananta Paul is a stranger vis-a-vis the plaintiffs and as such that deposit did not discharge the obligation of defendant No.1 Devendra Paul as a tenant of the plaintiffs. All the issues settled between the parties were decided by the trial Court in favour of the plaintiffs with the consequence that the suit was decreed with costs. The Assistant District Judge negatived the finding of the trial Court that Ananta Paul is a stranger to the plaintiffs respecting the house in dispute. In the opinion of the Assistant District Judge the pleadings of the plaintiffs when read together with the Court statement of plaintiff No.1 brought out that it had been admitted by the plaintiffs that Ananta Paul was also their tenant. The finding of the trial Court that there had been default in the matter of payment of rent was also reversed by the Assistant District Judge with the result that the decree of the trial Court was set aside and the suit of the plaintiffs dismissed. 5. The finding of the trial Court that there had been default in the matter of payment of rent was also reversed by the Assistant District Judge with the result that the decree of the trial Court was set aside and the suit of the plaintiffs dismissed. 5. It is manifest from the findings reached by the Assistant District Judge that Ananta Paul was a tenant along with Devendra Paul of the premises in dispute and not a sub-tenant of Devendra Paul as contended by the plaintiffs. It is this finding of the first appellate Court which was particularly depended upon by Shri J.P. Bhattacharjee in support of the contention that on abatement of the appeal respecting Ananta Paul, the appeal cannot proceed against the other respondents, or, in other, words, the appeal has abated in toto. Sri A.R. Barooah representing the plaintiffs-appellants, urged vehemently that since Devendra Paul, according to the plaintiffs, was the only tenant of the premises and since that Devendra Paul, according to the pleadings of the defendants, was the Karta of the Hindu Undivided family comprising all the three defendants, the appeal survives against defendants 1 and 3 despite its abatement against defendant No.2. Sub-rule (1) of Rule 4, Order 22, Civil Procedure Code, provides that where one of two or more defendants dies and the right to sue does not survive against surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. Sub-rule (3) of the same rule states that where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant. Rule 11 of the same Order prescribes that the provisions of Order 22 apply to appeals. A joint reading of Rules 4 and 11 yields the conclusion that if one of the two or more respondents dies and the right to sue does not survive against the surviving respondent or respondents alone, then the appeal shall abate as against the deceased respondent if his representative is not brought on the record within the time allowed by law. The corollary that follows from that joint reading of Rules 4 and 11 is that if the right to continue the appeal survives against the surviving respondents then there is no necessity for bringing on record the legal representatives of the deceased respondent. And this is exactly what is specifically stated in Rule 2 of Order 22. That Rule prescribes inter alia that where there are more plaintiffs or defendants than one and any of them dies, and where the right to sue survives against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed against the surviving defendant or defendants. The fact that the appellants had moved an application for bringing the legal representatives of deceased respondent Ananta Paul militates against the contention now raised that the appeal can proceed against the surviving respondents alone for Devendra Paul, the respondent No.1, alone can represent the Hindu Undivided family. If he could represent the other respondents or the Undivided Hindu family there would have been no legal compulsion nor necessity for the appellants to move the application praying lat the representatives of Ananta Paul be impleaded as respondents in the appeal. A close analysis of the plaint will reveal that a decree for arrears of rent had also been claimed against defendants Nos.2 and 3 though they had been described in the earlier part of the plaint as sub-lessees of defendant No.1. It is beyond dispute that the landlord has no right to claim arrears of rent from sub-lessees for lack of any contractual relationship between the landlord and the sub-lessees. Another relevant feature of the plaint is that the notice for ejectment had been, issued by the plaintiffs not only to the defendant No.1 but also to defendants 2 and 3. If the defendants 2 and 3 had the status only of sub-lessees the plaintiffs were not under any legal obligation to issue eviction notices to them on terms which are identical to the terms of the notice issued to the defendant No.1. If the defendants 2 and 3 had the status only of sub-lessees the plaintiffs were not under any legal obligation to issue eviction notices to them on terms which are identical to the terms of the notice issued to the defendant No.1. To cap all this, we have the distinct finding of the Assistant District Judge that "from the assessment of his (plaintiff Hanuman Prasads) plaint and his depositions it appears that he admitted Ananta Paul also as a tenant under them" Hence there is no escape from the conclusion that Ananta Pauls contention that he was a co-tenant with the defendants Nos.1 and 3 was accepted by the first appellate Court, and that that too on the basis of the admissions made in the plaint and the testimony of plaintiff No.1 Ananta Prasad as P.W.1. If Ananta Paul was a co-tenant of Devendra Paul then on his death the right to continue the appeal against Devendra Paul alone would not survive for it is clear that a suit for eviction to be effective and legally maintainable must be filed against the entire body of tenants and none of them can be left out 6. In the case of Union of India v. Shree Ram, AIR 1965 SC 1531 , the Supreme Court held in somewhat similar circumstances that the Union of India itself having applied for setting aside abatement of appeal arising out of the death of Bilas Rai, it (the Union of India) could not urge that there had been no abatement of the appeal against the heirs and legal representatives of late Bilas Rai. In the present appeal as well an application was moved by the appellants for bringing on record the representatives of deceased Ananta Paul on setting aside the abatement arising out of his death. Therefore it is too late in the day for the appellants to urge that Devendra Paul having been described in the written statement as the Karta of the Hindu Undivided family comprising all the three defendants, Devendra Paul represented the entire family and as such the question of abatement on the death of Ananta Paul does not arise. Therefore it is too late in the day for the appellants to urge that Devendra Paul having been described in the written statement as the Karta of the Hindu Undivided family comprising all the three defendants, Devendra Paul represented the entire family and as such the question of abatement on the death of Ananta Paul does not arise. Such a contention is also opposed to the finding of the learned Assistant District Judge that Anauta Paul was a co-tenant of Devendra Paul, and for the present purposes we have to look to the findings on which the decree under appeal was passed and not what had been pleaded by the parties. The Rajasthan High Court held in Nemi Chand v. Harak Chand, AIR 1965 Raj 132 , that the "question of abatement of an appeal is somewhat more complicated than the question of abatement of a suit, for the question of abatement of an appeal cannot be examined solely with reference to the relief claimed in the suit and it is much more important to look to the nature of the relief awarded by the decree under appeal". I entirely agree with these observations. The claim in the present appeal being for reversal of the decree made by the first appellate Court we have to examine the matter in controversy from the stand-point of the findings on which the decree is based. Therefore it shall be assumed for the present that the deceased Ananta Paul was a co-tenant of Devendra Paul of the premises in dispute. Moreover, it is not possible to spell out of the written statement of the defendants that the premises in dispute had been rented by defendant No.1 for the purposes of the Hindu Undivided family comprising the three defendants in his capacity as the Karta of that family. All that was set out in para 8 of the written statement was that the defendants 1, 2 and 3 are members of "Dayabhaga Hindu Undivided Family, that defendant No.1 is the Karta of that family, and that they all have been in occupation of the premises in suit for the last 30 years tenants of the plaintiffs. These averments do not necessarily imply that the house had been rented by defendant No.1 on behalf and for the purposes of the Hindu Undivided family. These averments do not necessarily imply that the house had been rented by defendant No.1 on behalf and for the purposes of the Hindu Undivided family. As such I find no merit in the contention of Sri Barooah that the defendants-respondents are bound to honour their own pleadings and that their pleadings are to the effect that the house had been taken on rent by defendant No.1 for the purposes of the Hindu Undivided family in his capacity as Karta of that family. These propositions were never admitted by the plaintiffs nor were upheld by the first appellate Court. The trial Court, as stated earlier, had described Ananta Paul as a stranger to the plaintiffs, and the plaintiffs themselves, the plaint clearly brings out, and described Ananta Paul as a sub-lessee of the defendant Devendra Paul and Devendra Paul alone as their tenant. In the background of these allegations and the findings of the two Courts below I hold without demur that the respondent Devendra Paul does not represent the Hindu Undivided family and that on the death of Ananta Paul the appeal did abate qua him. 7. In view of the above conclusions I have no option but to hold that Devendra Paul and Ananta Paul were joint tenants of the premises in dispute and that on the death of Ananta Paul the appeal cannot proceed against Devendra Paul alone, it having abated in respect of Ananta Paul whose representatives have not been brought on the record. The Supreme Court held in State of Punjab v. Nathuram, AIR 1962 SC 89 , that Rule 4 of Order 22 of the Code does not provide (or abatement of appeal against the co-respondent of the deceased respondent and that as such there can be no question of abatement of the appeal against others, and that the question to be considered in such, an event is whether the appeal could proceed against surviving respondents. The Supreme Court invited attention in that connection to Order 1, Rule 9, of the Code and observed that it shows that if the Court can deal with the matter in controversy so far as regards the rights and interests of the appellant and the respondents other than the deceased respondent, it has to proceed with the appeal and decide it. Respecting the principles governing the question whether or not a Court can proceed with the appeal on the death at one of the respondents the Supreme Court expressed itself in the following terms:- "The question whether a Court can deal with such matters or not, will depend on the facts of each case and therefore no exhaustive statement can be made about the circumstances when this is possible or is not possible. It may, however, be stated that ordinarily the considerations which weigh with the Court in deciding upon this question are whether the appeal between the appellants and the respondents other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the Court. The test to determine this has been described in diverse forms. Courts will not proceed with an appeal (a) when the success of the appeal may lead to the Courts coming to a decision which will be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the Courts passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary reliefs against those respondents alone who are still before the court and (c) when the decree against the surviving respondents, if the appeal succeeds, will be ineffective, that is to say, it could not be successfully executed." 8. Applying these principles to the case in hand it looks clear to me that the appeal cannot proceed against respondents Nos.1 and 3 because according to the findings of the Assistant District Judge Ananta Paul deceased and the respondent No.1 Devendra Paul were joint tenants under the plaintiffs-appellants respecting the suit premises and the suit for eviction could not be filed singly against one out of the two joint tenants. Further, if the present appeal is allowed against Devendra Paul then it would result in two contradictory decrees, one decree made by this Court for eviction of Devendra Paul from the premises in dispute and the other decree made by the first appellate Court enjoining that the appellants cannot evict Ananta Paul. Further, if the present appeal is allowed against Devendra Paul then it would result in two contradictory decrees, one decree made by this Court for eviction of Devendra Paul from the premises in dispute and the other decree made by the first appellate Court enjoining that the appellants cannot evict Ananta Paul. Such contradictory decrees are interdicted by the principles enunciated by the Supreme Court in the case of Nathu Ram AIR 1962 SC 89 (supra). 9. In conclusion I hold that the appeal cannot proceed against respondents Nos.1 and 3 and so I dismiss it against them. However, I make no order as to costs. Appeal dismissed.