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2014 DIGILAW 118 (MP)

Bhagchand v. Babulal

2014-01-24

R.S.JHA

body2014
Judgment R.S.Jha, J:- Before taking up the matter for final hearing, I.A.Nos. 5359/2000, 5360/2000 and MCP No. 236/2000 are taken up for consideration which have been filed by the legal representatives of the deceased/appellant no. 1 Bhagchand for being impleaded as his legal representatives. It is not disputed that the appellant no. 1 Bhagchand died on 17.1.2000 whereas applications for bringing his legal representatives on record and setting aside the abatement have been filed on 7.8.2000. This Court by order dated 3.11.2000 had directed the District Judge Seoni, to request and direct any Civil Judge posted at Seoni to inquire into the question whether the applicants were prevented by any sufficient cause from filing the application within the stipulated period. 2. As directed by this Court, a report dated 16.3.2001 has been submitted by the Second Civil Judge Class-I Seoni, after duly recording the statements of Neel Chand Son of deceased/appellant no.1 Bhagchand and one Bhagchand S/o Mondiya, the Kotwar. After recording the statements and examining the matter, the Civil Judge submitted a report on 16.3.2001 stating that the delay in filing the applications for substitution of legal representatives of deceased/appellant no.1 Bhagchand and for setting aside the abatement was not bonafide and sufficiently explained. 3. In view of the aforesaid report, the applications for substitution of legal representatives of deceased/appellant no.1 Bhagchand and for setting aside the abatement are dismissed. The question which remains to be answered is as to whether the appeal abates as a whole or whether it still survives for adjudication as far as appellant no. 2 Sher Singh is concerned. 4. Learned counsel for the appellants submits that the appeal as far as appellant no. 2 Sher Singh is concerned, survives whereas learned counsel appearing for the respondents on the strength of the decision of the Supreme Court rendered in Zahirul Islam V. Mohd Usman and others (2003) 1 SCC 476 submitted that the appeal abates as a whole. To examine the rival contentions of the parties, it is necessary to examine the facts of the case. From a perusal of record, it appears that the appellants/plaintiffs had filed a suit for declaration of title in respect of the land comprising 0.66 hectare which was part of khasra no. To examine the rival contentions of the parties, it is necessary to examine the facts of the case. From a perusal of record, it appears that the appellants/plaintiffs had filed a suit for declaration of title in respect of the land comprising 0.66 hectare which was part of khasra no. 130 of Village Khursipar Kala Tahsil Barghat District Seoni on the strength of the two sale deeds of the same date i.e. 8.3.1982, (Ex.P/1 and Ex.P/2) executed by one Likkhan S/o Nekram, Gaya Prasad and Shiv Prasad S/ o Likkhan. 5. From a perusal of the sale deeds, it is clear that the property in question had been purchased jointly by both the appellants and on the strength of the aforesaid sale deeds they had filed a suit for declaration of title as well as recovery of possession. The suit filed by the appellants has been dismissed by the Trial Court and the order of the Trial Court was affirmed in appeal. As stated above, during the pendency of this second appeal, appellant no.1 Bhagchand has died and on account of the fact that the application for substitution of his legal representatives was not filed within time, the appeal has abated as far as appellant no. 1 Bhagchand is concerned. From analysis of the aforesaid facts, it is apparent that the cause of action on the basis of which appellants had filed the suit was inter-dependent and conjoint and that an independent and distinct right cannot be claimed by either of the appellants to the exclusion of the other. In the circumstances, if the appeal is permitted to be prosecuted by the remaining appellant no.2 Sher Singh, it may lead to passing of conflicting decrees viz-a-viz between the respondents and the deceased/appellant no. 1 Bhagchand and the respondent and appellant no. 2. In view of the aforesaid facts and circumstances and in view of the law laid down by the Supreme Court in the State of Punjab V. Nathu Ram reported in AIR 1963 SC 89, and in Sri Chand Vs. M/s Jagdish Pershad Kishan Chand reported in AIR 1966 SC 1427 and in Zahirul Islam (Supra), I am of the considered opinion that the appeal abates as a whole. The appeal is accordingly dismissed as such.