Palaniyandi v. Arumugha Muthiriar — 1989 DIGILAW 532 (MAD)

JUDGMENT Janarthanam, J. 1. The plaintiffs in O.S. No. 409 of 1973 on the file of learned District Munsif, Karur are the appellants in the second appeal. Respondents 1 to 4 are defendants 1 to 4 respectively. That suit was filed by the plaintiffs for declaration and permanent injunction restraining the defendants, their men, agents and servants from interfering in any manner with the plaintiffs peaceful possession and enjoyment of the suit property, ayan punja lands measuring 1 acre and 45 cents in S.F. No. 439/3 with one Tamarind tree and two Karuvel trees in Chinthalavadi Village. 2. The pith and substance the case of the plaintiffs is as follows: The suit property originally belonged to one Malayala Pandaram and one Ponnusami Pandaram. The plaintiffs' mother purchased the same on 14.10.1935 for valuable consideration under Ex.A6 sale deed. Ever since then she had been in possession and enjoyment of the same. Subsequent to the death of their mother the suit property devolved on them and they had been in possession and enjoyment of the same. Defendants 1 to 3 have neither title nor possession to the suit properties. The defendants are opposing the claim of title to the suit property and are interfering with their peaceful possession. Further it seems that the defendants 1 to 3 have executed a sale deed in favour of the fourth defendant with regard to the suit property; The alleged sale deed is not legally valid and binding upon the plaintiff. 3. Defendants 1 to 3 filed a written statement adopted by the fourth defendant briefly contending as follows: The suit property is the ancestral property of the defendants. In any event they prescribed title to the suit property by adverse possession. They sold their property to fourth defendant under Ex.B.18 sale deed date 8.3.1973 for Consideration and since the date of purchase, the fourth defendant had been in possession and enjoyment of the same. 4. The trial Court on consideration of oral and documentary evidence decreed the suit as prayed for with costs. 5. They sold their property to fourth defendant under Ex.B.18 sale deed date 8.3.1973 for Consideration and since the date of purchase, the fourth defendant had been in possession and enjoyment of the same. 4. The trial Court on consideration of oral and documentary evidence decreed the suit as prayed for with costs. 5. Aggrieved by the judgment and decree, defendants 1 to 4 preferred A.S. No. 137 of 1979 before the learned Subordinate Judge, Karur, who in turn on consideration of the materials available on record and the arguments advanced by the counsel on both sides allowed the appeal on 9.4.1981 with costs, setting aside the judgment and decree and dismissed the suit itself, giving rise to this second appeal by the aggrieved plaintiffs. 6. Fourth defendant died during the pendency of the appeal before the lower appellate Court on 20.8.1980 and on his death, his legal representatives were not brought on record and the lower appellate Court disposed of the appeal without the legal representatives of the fourth defendant. In this second appeal, the appellants filed C.M.P. No. 1306 of 1983 for impleading the legal representatives of the fourth defendant. The respondents likewise also filed C.M.P. No. 8583 of 1989 to implead the legal representatives of the fourth defendant. Besides, they also filed C.M.P. No. 7135 of 1989 for setting aside the decree and judgment dated 9.4.1981 passed in A.S. No. 137 of 1979 on the file of the Sub Court, Karur by reason of the abatement of the said appeal on account of the death of the fourth defendant on 20.8.1980, whose legal representatives were not brought on record during the pendency of the above-said appeal, by allowing the second appeal and restoring the judgment and decree of the trial Court. The appellants sensing that both C.M.P. No. 1306 of 1983 and C.M.P. No. 7135 of 1989 cannot coexist together in view of the relief prayed for in C.M.P. No. 7135 of 1989 made an endorsement in C.M.P.No. 1306 of 1983 on 26.10.1989 that they were not pressing the same, consequence of which is that there is no other go for the Court, except to dismiss the same as not pressed and consequently the same is dismissed as not pressed. C.M.P. No. 8543 of 1989 filed by the respondents in a belated fashion namely after the lapse of nearly nine years after the death of the fourth defendant cannot at all be allowed and consequently, the same is dismissed. 7. There remains to be considered the preliminary objections raised by the appellants in C.M.P. No. 7135 of 1989. There is no manner of doubt whatever that the trial Court passed, a decree declaring the title of the plaintiffs besides granting the relief of injuction as prayed for. Pertinent it is to note that the defendants 1 to 3 did not at all claim any right, title or interest in the suit property in the sense of their having disposed of their interest in the suit property in favour of the fourth defendant and the fourth defendant alone had been in possession and enjoyment of the suit property since the time of purchase. Admittedly the fourth defendant died on 20.8.1980 and his legal representatives were not brought on record before the lower appellate Court which allowed the appeal on 9.4.1981. It is a settled proposition of law that the right to sue includes the 'right to appeal' when a party dies pending appeal. On the death of one of the defendants, the question of bringing his legal representatives on record will arise only if the right to sue survives. In other words, if the rights of the deceased were personal to him, the right to sue will not survive to or against his legal representatives on the maxim 'actio personalis moritur cum persona', a personal right of action dies with the person. However, right to sue survives, then it is to be found out whether the surviving defendants are such persons as could represent the deceased, or in other words whether the right of the dying defendant vest in the surviving defendants, if the right to sue vests in them no question of abatement arises. Only the name of the deceased defendant is deleted and the case or appeal proceeds. Where the surviving defendants do not represent the deceased, the necessity of bringing his legal representatives arises, and as laid down in the Sub-rule (3) of Rule 4 of Order 22 of C.P.C., if the legal representatives are not brought on record within the 'time limited by law', the suit or appeal shall abate only as against the deceased defendant. 8. 8. So far as the case on hand is concerned, it cannot be stated that the surviving defendants 1 to 3 are such persons as could represent the defendant 4, in view of the fact that whatever interest they had in the suit property had been disposed of in favour in the fourth defendant. In such an eventuality the right to sue vests only in the legal representatives of the fourth defendant and in the absence of they being impleaded, it goes without saying that the appeal shall abate in its entirety, the reason being there is no proceeding before the Court in which the Court is seized of the 'lis' between the parties. In such a case, the Court lacks inherent jurisdiction to pass any order; and if a decree is passed in ignorance of the death of the fourth defendant, the decree evidently would be a nullity. In such circumstances, the second appeal deserves to be allowed. 9. In the result, the second appeal is allowed, the judgment and decree of the lower appellate Court are set aside and those of the trial Court are restored, in the circumstances of the case, I make no order as to costs C.M.P. No. 1306 of 1983 is dismissed as not pressed. C.M.P. No. 7135 and 8543 of 1989 are also dismissed.