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2003 DIGILAW 104 (AP)

Arigela Laxmi v. Boodireddy Chandraiah

2003-01-21

GODA RAGHURAM

body2003
GODA RAGHURAM, J. ( 1 ) THE appellants herein are the defendants in O. S. No. 149 of 1995 on the file of the principal Junior Civil Judge, Karimnagar. The respondents herein filed the suit for declaration of title and perpetual injunction claiming to be the owners and possessors of an extent of Ac. 1. 15 gts, and Ac. 1. 14 gts, in sy. Nos. 95/a and 95/b respectively of bommakal village. ( 2 ) THE case of the plaintiffs is that when they obtained certified copies of the Pahanis for obtaining a loan from the Co-operative bank, they found that the Pahanis for the years 1980-81 to 1988-89, 1991-92 and 1992-93 recorded the name of the 1st defendant as the possessor, while the Pahani for the years 1989-90 the name of the 2nd defendant as the possessor. The plaintiffs approached the defendants to take steps to rectify the entries in the revenue records. The defendants refused and also denied the title of the plaintiffs. The defendants also came to the suit schedule property on 10-5-94 and tried to interfere with the petitioners possession. Hence the suit. ( 3 ) THE appellants herein resisted the suit contending that the father of the 2nd defendant purchased the land in sy. No. 95/a on 10-4-1954 by way of an unregistered sale deed from B. Hanmaiah father of the plaintiffs 2 and 3 and grandfather of the 1st plaintiff and the possession thereof was delivered to a. Mallaiah, father of the 2nd defendant. Similarly B. Narasimha Reddy father of the plaintiffs 4 to 6 sold the land in Sy. No. 95/b to the father of the 2nd defendant by an unregistered sale deed dt 15-5-64. The possession of this property was also delivered to A. Mallaiah by Narasimha reddy. Eversince, the father of the 2nd defendant was in possession of the property. ( 4 ) THE trial court by the judgment and decree dt 15-3-99 dismissed the suit concluding that the plaintiffs had not proved their title and also rejected the relief of recovery of possession holding that though the defendants came into possession of the suit property through an unregistered sale deed, they continued in possession qua sec. 53-A of the Transfer of Property Act and that the plaintiffs are not in possession. 53-A of the Transfer of Property Act and that the plaintiffs are not in possession. ( 5 ) AGGRIEVED, the respondents herein preferred A. S. No. 30 of 1999 on the file of the iv Additional District and Sessions Judge (Fast Track Court), Karimnagar. During the pendency of this appeal the 3rd plaintiff died on 28-1-2000 and no steps were taken by the plaintiffs - respondents herein, to bring the legal representatives of the 3rd plaintiff on record in the appeal. Unmindful of this fact, however, the lower appellate court allowed the appeal by the judgment and decree dated 8-5-2002 and granted the plaintiffs the relief sought in the suit. The lower appellate court concluded that the suit lands belong to the family of the plaintiff, that they were not sold to the defendants and that the unregistered sale deeds Exs. B-1 and B-2 are false, fabricated and brought into existence for the Us. The court below further held that no significance could be attached to the entries made in the Pahanis as no legal title passed to the defendants. The lower appellate court also found that the Pahanis produced by the plaintiffs and defendants do not tally and from this it concluded that they have been tampered with. ( 6 ) AGGRIEVED thereby this Second Appeal is instituted by the defendants in the suit, inter alia assailing that the appeal A. S. 30/99 stood abated in its entirety as the LRs of the 3rd plaintiff-3rd appellant in A. S. No. 30/99 were not brought on record, within time from the date of his death on 28-1-2000 and consequently the decree and judgment in a. S. No. 30/99 is a nullity. ( 7 ) IT requires to be noticed that in instituting the suit for declaration of title and perpetual injunction the plaintiffs claimed common ownership and possession of the suit schedule lands. The question that arises for consideration is whether in such circumstances on account of the death of the 3rd plaintiff- 3rd appellant in A. S. No. 30/99 and the failure to bring his LRs on record in the appeal within time, the appeal stood abated and therefore the judgment and decree of the first appellate court is a nullity. ( 8 ) THE provision of Order XXII Rule 3 cpc are relevant for the resolution of the issue involved in this Second Appeal. ( 8 ) THE provision of Order XXII Rule 3 cpc are relevant for the resolution of the issue involved in this Second Appeal. The provision is as under:"order XXII death, MARRIAGE AND insolvency OF PARTIES 3. Procedure in case of death of one of several plaintiffs or of sole plaintiff: (1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. (2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and on the application of the defendant, the court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff. " ( 9 ) THE above provision vis-a-vis the provisions of Order XLI Rule 4 CPC, fell for consideration of the Supreme Court, in the context of a conflict of views in the judgments of different High Courts, in rameshwar Prasad and others v. Shambehari Lal jagnnath and another. In this case Kedar Nath and 8 others had instituted a suit for ejectment and recovery of rents from the two defendants on the allegation that the 1st defendant was the tenant in-chief. who had sub-let the premises to the 2nd defendant. The suit for ejectment was decreed against both the defendants and for recovery of arrears of rents against the 1st defendant. On appeal by the 2nd defendant, the District court set aside the decree of ejectment against the 2nd defendant and confirmed the rest of the decree against the 1st defendant. Against this decree the 9 original plaintiffs filed the Second Appeal in the high Court. Kedar Nath - the 3rd appellant in the Second Appeal before the High Court, died during the pendency of the Second appeal. Consequently the appeal abated as far Kedar Nath is concerned as no application for bringing his Lrs on record was made within the prescribed time. Kedar Nath - the 3rd appellant in the Second Appeal before the High Court, died during the pendency of the Second appeal. Consequently the appeal abated as far Kedar Nath is concerned as no application for bringing his Lrs on record was made within the prescribed time. Thereafter two applications were filed in the high Court - one, an application under section 5 of the Limitation Act for condonation of the delay in filing the application for substitution of heirs in the place of Kedar Nath and the other, an application for substitution, in which it was stated that the sons of Kedar Nath be substituted in the place of the deceased appellant as his heirs and Lrs. These applications were dismissed and consequently the appeals stood abated as against Kedar Nath. When the appeals of the appellants other than Kedar Nath came up for hearing, a preliminary objection was taken by the respondents that the entire appeal had abated. On behalf of the appellants it was contended that the deceased Kedar Nath belonged to a joint hindu family, other members of the family were already on record, it was not necessary to bring on record any other person and the appeal could not be said to have abated in the circumstances. It was also contended on behalf of the appellants that the 8th appellant had managed the family property which was joint property and he acted for and on behalf of the family. On behalf of the respondents in the Second Appeal these assertions of the appellants were denied, but were reiterated by the appellants in their rejoinder. The High Court therefore, considered the question whether the surviving appellants were competent to continue the appeal in view of Order XLI rule 4 CPC. It repelled this contention on behalf of the appellants holding that the interests of the surviving appellants and the deceased appellant were joint and indivisible and in the event of success in the appeal there would be two inconsistent and contradictory decrees. Consequent on these conclusions the Second Appeal was dismissed and the question came to be considered in a special leave, by the supreme Court. Consequent on these conclusions the Second Appeal was dismissed and the question came to be considered in a special leave, by the supreme Court. The Supreme Court held as under (A) That the appellant Kedar Nath could not be said to have constituted a joint Hindu family with the other appellants and the right to appeal did not survive to the surviving appellants; (B) That in the circumstances provisions of Order XLI Rule 4 CPC do not apply. Order XLI Rule 4 enables one of the plaintiffs or one of the defendants to file an appeal against the entire decree. The second Appeal was filed by all the plaintiffs jointly and it therefore not an appeal to which provisions of order XLI Rule 4 CPC would apply and these provisions would not be available to the surviving plaintiffs-appellants. As Kedar Nath was alive when the appeal was filed and was one of the appellants, the surviving appellants cannot be said to have filed appeal representing kedar Nath; (C) That Kedar Nath s appeal having abated and the decree in favour of the respondents having become final against his Lrs, such Lrs cannot eject the defendants from the suit schedule premises; (D) That the question of provisions of order XLI Rule 4 CPC overriding the provisions of Order XXII Rule 9 cpc does not arise. The two provisions deal with different stages of appeal and provide for different contingencies. Order XLI rule 4 CPC applies as such when an appeal is filed and empowers one of the plaintiffs or defendants to file an appeal against the entire decree in certain circumstances. Once an appeal has been filed by all the appellants the provisions of order XLI Rule 4 CPC became unavailable. Order XXII CPC operates during the pendency of the appeal and not at its institution. If some party dies during the pendency of the appeal, his Lrs have to be brought on record within the period of limitation. If that is not done, the appeal of the deceased appellant abates and cannot be proceeded with further; (E) That when the Lrs of the deceased appellant and the surviving appellants were negligent in not taking steps "for substitution, the court would not exercise its discretion under Order XLI Rule 33 cpc in favour of such a party. If that is not done, the appeal of the deceased appellant abates and cannot be proceeded with further; (E) That when the Lrs of the deceased appellant and the surviving appellants were negligent in not taking steps "for substitution, the court would not exercise its discretion under Order XLI Rule 33 cpc in favour of such a party. This discretionary power cannot be exercised to nullify the effect of the abatement of the appeal. Such an exercise of the discretion/power will lead to the existence of two contradictory decrees between the heirs of the deceased appellant and the respondents - one passed by the appellate court and another to the contrary effect by the court below, which had attained finality consequent on the abatement of the appeal in so far as they are concerned. ( 10 ) CONSEQUENT on the above ratio the supreme Court held that the High Court could not have heard the appeal of the surviving appellants in view of the abatement of the appeal of Kedar Nath, as all the appellants had a common right and interest in getting a decree of ejectment against the 2nd defendant and such decree could have been on a ground common to all of them. The appeal was accordingly dismissed. ( 11 ) IN Sri Chand and others v. M/s. Jagdish pershad Kishan Chand and others the aspect of application of Order XXII Rule 3 and order XLI Rule 4 CPC, again fell for the consideration of the Supreme Court. Reiterating the ratio enunciated in State of punjab v. Nathu Ram and Shambehari Lal jagannath s case (supra) the Supreme Court held that when the decree in favour of the respondents is joint and indivisible, the appeal against the respondents other than the deceased respondent cannot be proceeded with when the appeal against the deceased respondent has abated. ( 12 ) THE above principles were reiterated in Dwaraka Prasad Singh and others v. Harikant prasad Singh and others. Consequent on the application of these principles the abatement of the appeal in so far as the 3rd plaintiff -3rd appellant in A. S. No. 30/99 is fatal to the entire appeal A. S. No. 30/99 as inconsistent and contradictory decrees would have to be passed and the appropriate relief could not be granted in the absence of a necessary party. ( 13 ) THESE principles again fell for consideration before the Supreme Court in municipal Council, Mandsaur v. Fakirchand and another. Three plaintiffs - brothers, claiming to be owners of Hindu joint family property filed the suit against the municipality, Mandasaur, for a permanent injunction, asserting title to the property. The suit was decreed by the trial court and the Municipal Council preferred an appeal before the lower appellate court. During the pendency of the said appeal, one of the plaintiffs died. The Municipality did not bring the heirs and Lrs of the deceased brother on record, despite the knowledge of the same, but made an application that the name of the deceased brother should be deleted from the array of parties. Thereafter the other plaintiffs asserted that the appeal has abated as a whole because the heirs and lrs of one of the co-owners had not been brought on record. This contention having been upheld by High Court in a Second appeal, the matter came to be considered by the Supreme Court. Before the Supreme court, the appellant Municipality contended that as the property was asserted to be a hindu joint family, it must be deemed to have been represented by the Karma of the family and as the eldest brother-plaintiff was alive, it must be held that the joint hindu family property was represented by the eldest brother and no question of abatement as a whole would arise. Rejecting this contention, the Supreme Court held that from the statement in the plaint it cannot be conclusively held that the property was coparcenary property represented by a kartha. In the plaint it is alleged that after the death of the father, the three brothers became owners. The averments in the plaint really mean that the disputed property was the undivided property of the three sons, who had inherited the father s interest after his death. Even if it were assumed that it was a coparcenary property, there was nothing on record to indicate that any one member or the eldest male member of the family was acting as Kartha of the joint family. Even if it were assumed that it was a coparcenary property, there was nothing on record to indicate that any one member or the eldest male member of the family was acting as Kartha of the joint family. On the contrary, it appears that all the co-owners filed the said suit for injunction, which on the face of it, only indicates that all of them intend to exercise their right as co-owners in the property and had not authorised any one of them to represent the property as a Kartha of the joint Hindu family property. On the above ratio and conclusions the Supreme Court dismissed the appeal of the Municipality. ( 14 ) A somewhat similar fact situation as in this Second Appeal, fell for consideration by a learned Single Judge of this court in ajiti Pedda Gangaram and another v. Adamula janardhana Reddy. Two plaintiffs filed the suit for a permanent injunction to restrain the defendants from interfering with their possession and enjoyment of a well, claiming exclusive title in the well. The suit was dismissed on a finding that the plaintiffs failed to prove that the defendants interfered with their possession and enjoyment of the suit well. The appellate court reversed the findings of the trial court and held that the plaintiffs are exclusive owners of the suit well, the defendants had no rights therein and that they tried to interfere with the enjoyment of the plaintiffs. During the pendency of appeal, however, the first appellant died, but his Lrs were not brought on record. The court passed an order that the appeal had abated against the first appellant, but eventually allowed the appeal in respect of the 2nd appellant. This court held that in view of the earlier order of the lower appellate court holding that the appeal had abated against the 1st appellant, the lower appellate court dismissed the claim of the first plaintiff. Consequently the decision of the lower appellate court in allowing the appeal granting a permanent injunction in favour of the 2nd plaintiff amounted to passing an inconsistent decree-one in favour of the legal heirs of the 1st plaintiff and the other in respect of the 2nd plaintiff. Consequently the decision of the lower appellate court in allowing the appeal granting a permanent injunction in favour of the 2nd plaintiff amounted to passing an inconsistent decree-one in favour of the legal heirs of the 1st plaintiff and the other in respect of the 2nd plaintiff. On the above reasoning this court concluded that consequent on the abatement of appeal in respect of the 1st appellant the abatement is an abatement of the appeal in its entirety, and allowed the Second Appeal. ( 15 ) THE aforesaid principles were reiterated in Mohd. Safdar Shareef (died) per lrs. and others v. Mohammed Ali (died) per l. R. A Division Bench of this court held that an appeal would abate as a whole when the case is of such a nature that the appeal cannot proceed in the absence of LRs. of the deceased appellant and that the basis of this rule (Order XXII Rules 3 and 4 CPC) is that to decide an appeal without bringing LRs. on record in a case of that nature would produce two inconsistent and contradictory decrees in the same litigation with respect of the same subject matter. ( 16 ) THESE principles were followed by the supreme Court in Papanna v. State of karnataka and others wherein the Supreme court held that the appeals before it challenging the validity of the notification under Section 4 (1) of the Land Acquisition act, 1894 stood abated against all since the lrs. of the 2nd appellant had not been brought on record. ( 17 ) IN Bibi Rahmani Khatoon v. Harkoo cope the Supreme Court stated the principle of abatement as under:"10. The concept of abatement is known to civil law. If a party to a proceeding either in the trial court or in appeal or revision dies and the right to sue survives or a claim has to be answered, the heirs and legal representatives of the deceased party would have to be substituted and failure to do so would result in abatement of proceedings. Now, if the party to a suit dies and the abatement takes place, the suit would abate. If a party to an appeal or revision dies and either the appeal or revision abates, it will have no impact on the judgment, decree or order against which the appeal or revision is preferred. Now, if the party to a suit dies and the abatement takes place, the suit would abate. If a party to an appeal or revision dies and either the appeal or revision abates, it will have no impact on the judgment, decree or order against which the appeal or revision is preferred. In fact such judgment, decree or order under appeal or revision would become final. " ( 18 ) THE core question that falls for consideration in this Second Appeal was also considered by the Supreme Court in a somewhat different factual matrix. In ambabai and others v. Gopal and others the question that fell for consideration was if during the pendency of a second appeal the appellant died and his Lrs were not brought on record but the High Court disposed of the second appeal without knowledge of such fact, the Second Appeal abated and the judgment, decree or order of the first appellate court became final. The Supreme court held that in such a case there could not be merger of the judgment, decree or order passed in the second appeal with that passed in the first appeal and there is no question of the application of the doctrine of merger. The court held that as the appellant died during the pendency of the second appeal and in the absence of his legal heirs not having taken any steps to prosecute the second appeal, the decree passed by the first appellate court must be deemed to have become final. ( 19 ) SRI Ravikiran Rao, learned counsel for the respondents herein relied upon the decision of a Division Bench of Calcutta high Court in Kanailal Manna and others v bhabataran Santra and others. In the facts before the Calcutta High Court in the above case, as against the joint decree in favour of plaintiffs an appeal was preferred by the defendants. One of the plaintiffs died before the hearing of the appeal. The appeal was however dismissed and a joint decree passed in ignorance of the death. In the facts before the Calcutta High Court in the above case, as against the joint decree in favour of plaintiffs an appeal was preferred by the defendants. One of the plaintiffs died before the hearing of the appeal. The appeal was however dismissed and a joint decree passed in ignorance of the death. On these facts, the Calcutta High Court ruled that the high Court could neither affirm the decree of the trial court nor can set aside the abatement and the proper way is to set aside the decree and remand the appeal to the lower appellate court to rehear the same taking into consideration the effect of abatement as against the plaintiffs-respondents subject, however, to giving an opportunity to the appellants to have such abatement set aside in accordance with law. The application filed before the High Court under Order XXII Rule 9 CPC was also sent to the lower appellate court for being disposed of on merits. This decision has no application in the facts of this case. It is not pleaded that an application under order XXII Rule 9 CPC was filed before the lower appellate court by the appellants therein - respondents herein for setting aside the abatement or dismissal of the appeal against the 3rd appellant - 3rd plaintiff. In fact the lower appellate court has passed the decree allowing the appeal in ignorance of the factum of the death of the 3rd appellant; nor has any application under Order XXII rule 9 CPC been filed before this court. ( 20 ) ANOTHER decision relied upon by the respondents herein is the one rendered in chaya and others v. Bapu Saheb and others. The facts of the case are that certain members of the public filed suit claiming burial land in two different pieces of land. Defendants 1 to 3 to the suit were brothers and owners of the land. They sold portions of the suit land which were purchased by defendants 4 to 15. Defendant 1 claimed interest only in one of the pieces, defendant 2 in the other and defendant 3 in neither. The suit was however contested by defendants 1, 2 and 4 to 8. The trial court decreed the suit against all the defendants in respect of both the properties. Defendant 1 alone filed an appeal to the District Court against the whole decree. The suit was however contested by defendants 1, 2 and 4 to 8. The trial court decreed the suit against all the defendants in respect of both the properties. Defendant 1 alone filed an appeal to the District Court against the whole decree. Defendants 2 to 3 as well as the purchaser-defendants were joined as respondents in the appeal. During the pendency of the appeal the 2nd defendand - respondent 55 in the appeal died leaving behind him his widow and minor children who were however no brought on record in the appeal. The plaintiffs- respondents at no stage in the appeal raised the plea of abatement of the appeal. The District Court decided the appeal on merits and dismissed the same the defendant-1 alone thereupon filed the second appeal in the High Court challenge the whole decree. The 2nd defendar although dead was joined as a respondent the second appeal along with D-3 and the purchasers-defendants. The High Court deleted the name of the 2nd defendant from the record. On merits the High Court he that the customary right was not establishe and set aside the decree of the trial court. however restricted the decree to the appellant before it i. e. , D-1 only, leaving the decree against the other defendar undisturbed. The widow and children of the deceased-D-2 after failing in a review moved by them in the High Court, filed the appeal before the Supreme Court urging two questions (1) Whether the first appeal had abated by non-impleadment of the appellants, and (2) Whether the High Court could have passed the decree embracing the entire suit property. ( 21 ) ALLOWING the appeal the Supreme court held that the plaintiff-respondents knew of the death of the 2nd defendant during the pendency of the appeal, but failed to take any objection to the appeal being heard on merits and in fact the appeal was heard and decided on merits. They proceeded on the presumption that they were concerned with the entire suit property and the customary right was to be asserted against the whole of the suit property as such, which was sufficiently represented in law by the surviving defendants. Since the plaintiffs-respondents did not raise the objection with regard to abatement of the appeal they were barred from raising the said objection in the second appeal before the High Court. Since the plaintiffs-respondents did not raise the objection with regard to abatement of the appeal they were barred from raising the said objection in the second appeal before the High Court. Applying the principles emanating from Order XLI Rule 33 CPC the supreme Court held that though power and discretion available under the said provision is derogative of the general principle that a party cannot avoid the effect of a decree against him without filing an appeal or cross-objection and in the circumstances the power has to be exercised with care and caution, held that in an appropriate case the appellate court should not hesitate to exercise the discretion conferred by the said rule. It requires to be noticed that as apparent from para 10 (of the SCC) of the judgment the facts of the case reveal that the purchaser-defendants were vendees of different portions of both Sy. Nos. of the land and had interest in both pieces of the land along with Defendants 1 and 2, there were residential houses constructed, particularly, by the purchaser-defendants in both the pieces of the land and under Section 6 of the hindu Succession Act upon the death of d-2 there was a notional partition vesting 1/4th share in the 2nd defendant with the widow and the minor sons together getting the remaining 3/4th share. The 1/4th share of the 2nd defendant would devolve by succession to his class-1 heirs comprising the widow, two sons and two daughters who were the appellants before the Supreme court. The court also found that if the decree of the trial court as confirmed by the appellate court is held to have become final, it is only the 1/4th share of D-2 which would be burdened by the so-called customary right of burial decreed by the trial court in favour of the plaintiffs. Even this l/4th share would stand further reduced by the area purchased by the 12 vendee-defendants or by some of them as the case may be. Thus, the customary right claimed would be confined to a small patch of land surrounded by residential houses. Even this l/4th share would stand further reduced by the area purchased by the 12 vendee-defendants or by some of them as the case may be. Thus, the customary right claimed would be confined to a small patch of land surrounded by residential houses. The supreme Court also noted that the record discloses that the Municipality was approached to acquire the entire land for burial purposes, which request was however rejected by the Municipality on the ground that enough burial land was available elsewhere and that the present land being surrounded by houses was not suitable for burial purposes. In these peculiar facts and circumstances, the supreme Court held that even after exercising the care and caution warranted in exercising the power under Order XLI rule 33 CPC, the power available thereunder ought to have been exercised by the High Court and the decree of the trial court should have been set aside in its entirety instead of restricting the benefits of the Second Appeal to the 1st defendant who was the appellant before it. ( 22 ) THE principles and ratio emanating from the above judgment of the Supreme court offer no assistance to the case of the respondents in this Second Appeal. In the case on hand it was the duty of the other plaintiffs - appellants before the lower appellate court to have brought the heirs and legal representatives of the 3rd plaintiff-3rd appellant on record in the court below and within the period of limitation. This they failed to do. The decision of the supreme Court was also rendered in the peculiar facts of the case before it wherein as a consequence of the judgment of the High court in the Second Appeal, a very small portion of the land remained for use as a burial ground as claimed by the plaintiffs and in the midst of a vast extent of land on which residential houses were constructed and in the context of a finding by the municipality that alternative burial ground was available and the patch of land surrounded by the residential houses was unsuitable for being used as a burial ground. ( 23 ) IN the circumstances on the application of the principles enunciated in the decisions already referred to, in particular to the decision of the Supreme court in Nathuram s case (supra) and shambehari Lal Jagnnath s case (supra) as well as the decision of the Division Bench in mohd. Safdar Shareefs case (supra), it must be held that on the death of the 3rd appellant boodireddy Chinna Mallaiah on 28-1-2000, the appeal A. S. No. 30/99 on the file of the iv Additional District and Sessions Judge (Fast Track Court) Karimnagar, stood abated in its entirety and consequently the decree and judgment of the first appellate court in A. S. No. 30/99 is a nullity. It is accordingly set aside. ( 24 ) THIS Second Appeal is accordingly allowed. No order as to costs.