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1998 DIGILAW 326 (MAD)

Goodyear (India) Ltd. , New Delhi and Another v. S. Venkatakrishnan and Others

1998-03-02

K.GOVINDARAJAN

body1998
Judgment : The petitioners/tenants have filed the above revision, aggrieved against the order passed by the appellate authority in R.C.A.No.1978 of 1982. .2. Pending the revision, the fourth respondent died on 5. 1996. The C.M.Ps., to implead the legal representatives of the deceased fourth respondent, to set aside the abatement caused by the death of the de- ceased fourth respondent and to condone the delay of 324 days to bring on record the Legal Representatives of the deceased fourth respondent, namely, C.M.P.Nos.10210 of 1997, 2676 of 1998 and 9960 of 1997, have been dismissed by this Court in its order dated 22. 1998. In view of the dismissal of the abovesaid C.M.Ps., this revision is abated insofar as the fourth respondent is concerned. .3. On the basis of the abovesaid facts, the learned counsel appearing for the respondents have raised a preliminary objection saying that since the decree is a composite one and the same cannot be divisible, the petitioners cannot be allowed to proceed further on merits with this revision, as the same is abated against the fourth respondent, who is the co-owner of the property in question. In support of his submission, the learned counsel have relied on the decision of the Apex Court in Municipal Council, Mandsaur v. Fakirchand and another, (1997)2 M.L.J. (S.C.) 56. wherein the Apex Court has held as follows: .“It has been alleged in the plaint that after the death of the father, all the three brothers became owners of the said joint Hindu family property. It may be indicated here that if it was a co-parcenary property then the sons would have been coparceners even before the death of the father and there was no necessity to wait till the death of the father to get ownership of the property. The averments in the plaint really mean that the disputed property was the undivided property of the said three joint owners who had inherited the father’s interest after his death. That apart, even if it is assumed that it was coparcenary property, there is nothing on record to indicate that any one member or the eldest male member of the family was acting as a kartha of the joint family. That apart, even if it is assumed that it was coparcenary property, there is nothing on record to indicate that any one member or the eldest male member of the family was acting as a kartha of the joint family. On the contrary, it appears that all the co-owners filed the said suit of injunction which, on the face of it, only indicates that all of them intend to exercise their right as co-owners of the property and they have not authorised any one of them to represent the property as a kartha of the joint Hindu family property”. .4. In this case, it is not in dispute that all the respondents are co-owners of the property in question. The decree is a common decree which cannot be separated. If the revision is heard and the decree of the learned Appellate Authority, VII Small Causes Court Judge, Madras is varied, it will affect the interest of the fourth respondent also. It cannot be said that the interest of the parties can be decided separately. In such circumstances, the petitioners cannot be allowed to proceed further with revision, on merits. 5. The learned counsel appearing for the petitioners, on the other hand, has submitted that it is well settled that the fair rent fixed is only to the premises in question and not with respect to the persons and so even without the fourth respondent as a party, the case can be proceeded with further. 1 am not able to agree with such contention. Though the fair rent is going to be fixed finally, with respect to the premises in question, while fixing such rent, the concerned party should be given an opportunity. 1 am not able to agree with such contention. Though the fair rent is going to be fixed finally, with respect to the premises in question, while fixing such rent, the concerned party should be given an opportunity. While dealing with similar issue, the Apex Court in State of Punjab v. Nathu Ram, (1961)2 M.L.J. (S.C.) 182: (1961)2 An.W.R. (S.C.) 182: (1961)2 S.C.J. 637: (1961)2 S.C.R. 636: A.I.R. 1962 S.C. 89 has rejected the contention that the parties have equal shares in the land acquired and therefore the appeal against one of them alone can be dealt with half of the amount in the award, and held as follows: “The result of the abatement of the appeal against Labhu Ram is therefore that his legal representatives are entitled to get compensation on the basis of this award, even if they are to be paid separately on calculating their rightful share in the land acquired, for which this compensation is decreed. Such calculation is foreign to the appeal between the State of Punjab and Nathu Ram. The decree in the appeal will have to determine not what Nathu Ram’s share in this compensation is, but what is the correct amount of compensation with respect to the land acquired for which this compensation has been awarded by the arbitrator. The subject-matter for which the compensation is to be calculated is one and the same. There cannot be different assessments of the amounts of compensation for the same parcel of a land. The appeal before the High Court was an appeal against a decree jointly in favour of Labhu Ram and Nathu Ram. The appeal against Nathu Ram alone cannot be held to be properly constituted when the appeal against Labhu Ram had abated. To get rid of the joint decree, it was essential for the appellant, the State of Punjab, to implead both the joint decree-holders in the appeal. In the absence of one joint decree-holder, the appeal is not properly framed. It follows that the State appeal against Nathu Ram alone cannot proceed”. 6. In view of the abovesaid settled law, the petition- ers cannot be allowed to proceed with the above revision on merits. Accordingly, this revision is dismissed. No costs.