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2006 DIGILAW 611 (GAU)

Rajkumar Sinha v. Puskar Singh

2006-06-29

B.BISWAS

body2006
JUDGMENT D. Biswas, J. 1. This Revision is directed against the order dated 29th March, 2003 passed by the learned Civil Judge (Senior Division), Karimganj in Title Appeal No. 13/99. 2. Heard Mr. B.K. Goswami, learned senior counsel for the petitioner-defendants and also Mr. C.K. Sarma Baruah, learned senior counsel for the opposite parties-plaintiffs. 3. The opposite parties filed Title Suit No. 114/95 in the court of the learned Civil Judge (Junior Division) No. 2, Karimganj against the revision petitioners and others for declaration of right, title and interest and confirmation of possession over the disputed land measuring 12 Kedars. The revision petitioners as defendants contested the suit. Their plea before the learned trial court was that the disputed land is a cremation ground known as Sonar Marjai. The land is recorded in the name of the Committee. The learned trial court dismissed the suit after completion of trial. The opposite parties (respondents herein) preferred an appeal being Title Appeal No. 13/99 before the learned Civil Judge (Senior Division), Karimganj. During pendency of the appeal, the appellant No. 3 Tikendra Singha died on 21st February, 2002. The legal heirs of Tikendra Singha were not substituted. The revision petitioners prayed for dismissal of the appeal on the ground that the appeal has abated as a whole for non-substitution of the legal heirs of appellant No. 3. Reason for such argument is that the suit was initiated for declaration of right, title and interest of the plaintiffs (opposite parties) jointly and without indicating the individual share of each of the plaintiffs. 4. The learned Civil Judge (Senior Division), Karimganj, by the impugned order dated 29th March, 2003, rejected the prayer of the revision petitioners for dismissal of the suit on the ground that the interest of the surviving plaintiff-appellants is separable and hence, the surviving plaintiff-appellants have a right to continue with the appeal. The learned Civil Judge further held that the appeal abated only in respect of the deceased appellant. 5. The law relating to abatement is that when one of the plaintiff-appellants die out of two or more plaintiff-appellants and the interest of the surviving plaintiff-appellants survives, the suit or appeal shall be abated only in respect of the deceased plaintiff or the appellant. 5. The law relating to abatement is that when one of the plaintiff-appellants die out of two or more plaintiff-appellants and the interest of the surviving plaintiff-appellants survives, the suit or appeal shall be abated only in respect of the deceased plaintiff or the appellant. If the interest of the plaintiff-appellants is joint and not capable of being ascertained and separated, only in that case the suit or appeal shall abate as a whole. On the other hand if the interest of the surviving plaintiff-appellants is capable of being separated, the suit/appeal may be continued by them. 6. The doctrine of abatement is applicable equally to a suit as well as to an appeal. It is clear from the provisions of Order XII, Rules 3, 4 and 11 of the Code of Civil Procedure that an appeal, which is a continuation of suit, will not abate where the right to sue survives to the surviving plaintiff or plaintiffs. The test whether right to sue survives or not is whether the surviving appellant-plaintiffs can alone sue in the absence of the deceased appellant/defendant. When several persons jointly own a property, one or more owners cannot sue without either leaving aside other owners. In a suit or appeal by Joint owners for declaration of title, and possession of property, on a common cause without ascertaining individual interest, omission to bring legal representatives of one co-owner on his death results in abatement of the suit or the appeal as a whole. 7. In Rameshwar Prasad v. Shambehari Lal Jagannath [1964] 3 SCR 549, it was held by the hon'ble Supreme Court that an appellate court has no power to proceed with an appeal and to reverse and vary the decree in favour of all the plaintiffs or defendents under Order 41, Rule 4 when the decree proceeds on a ground common to all the plaintiffs or defendents, if all the plaintiffs or the defendants appeal from the decree and any of them dies and the appeal abates so far as he is concerned. (Ref. Para 16). Similar view is also available from the judgments in Municipal Council, Mandsaur v. Fakirchand and Anr. reported in AIR 1997 SC 1251 and Mahadeolal Pasari and Ors. v. Phoenix Automobile Sales and Services (P.) Ltd. and Ors. reported in (1989) 2 GLR 86. 8. (Ref. Para 16). Similar view is also available from the judgments in Municipal Council, Mandsaur v. Fakirchand and Anr. reported in AIR 1997 SC 1251 and Mahadeolal Pasari and Ors. v. Phoenix Automobile Sales and Services (P.) Ltd. and Ors. reported in (1989) 2 GLR 86. 8. In the instant case, the suit was filed on a common cause of the plaintiffs for declaration of right, title and interest without ascertaining the individual share and interest on the disputed land. The learned trial Judge dismissed the suit as the plaintiffs (respondents) failed to establish their title. Again reading of the judgments and the pleadings on record suggest that the suit was based on a common cause for declaration of right, title and interest jointly by the plaintiffs. In such a view of the matter, the decree passed by the court below is based on a common cause and, hence, the appeal preferred against such a decree abated as a whole on omission to substitute the legal representatives of one of the appellants on his death. 9. In the result, the revision petition is allowed. The order dated 29th March, 2003 is set aside. Consequently, the Title Appeal No. 13/99 is dismissed.