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2014 DIGILAW 429 (CHH)

Chandra v. Hari Singh

2014-11-28

P.SAM KOSHY

body2014
JUDGMENT P. Sam Koshy, J. 1. The instant second appeal has been preferred by the appellant/defendants challenging the judgment and decree dated 04.08.1998 passed by Second Additional District Judge, Jagdalpur in Civil Appeal No. 67-A/97, By way of the said impugned judgment, the first Appellate Court has affirmed and confirmed the judgment and decree dated 04.10.1997 passed by third Civil Judge Class II, Jagdalpur in Civil Suit No. 65-A/96. Facts leading to the instant appeal in brief are that the respondents 1 to 6 who were the plaintiffs before the Civil Court had filed a civil suit which was registered as Civil Suit No. 23-A/95 and subsequently renumbered as Civil Suit No. 65-A/96 seeking for declaration of title on the basis of adverse possession over the suit land situated in village Chokawada, Tehsil Jagdalpur. 2. After completion of the pleadings and recording of the evidences, the trial Court vide its judgment and decree dated 04.10.1997 allowed the suit of the plaintiffs granting them title over the suit premises on the ground of adverse possession. 3. The said judgment was put to challenge by the defendants in a first appeal which was registered as Civil Appeal No. 67-A/97. After hearing the parties in the appeal, the first appellate Court i.e. the Court of Second Additional District Judge, Jagdalpur vide its judgment and decree dated 04.08.1998 rejected the first appeal also upholding the judgment and decree passed by the civil judge. 4. It is this judgment dated 04.08.1998 which is under challenge in the instant second appeal. 5. The second appeal was preferred by the present appellant and the deceased appellant Mst. Padmi as early as on 18.11.1998 and in due course of time it was admitted for hearing on the following substantial question of law: "Whether in view of the admitted fact that a compromise decree was passed in the earlier civil/suit No. 13-A/1967 and the plaintiffs/respondents continued to remain in possession as per the said compromise decree, the subsequent civil suit filed by the plaintiffs on the basis of adverse possession could be decreed by the trial Court and the plea of adverse possession was available to the plaintiffs?" 6. Counsel for the appellant challenged the judgment of the two Courts below in spite of there being a concurrent finding of facts by both the Courts below in respect of the right which has been accrued in favour of the plaintiffs. According to the counsel for the appellant, the finding arrived at by both the Courts below was totally erroneous and also was contrary to the evidence which has come on record. Counsel for the appellant tried to stress upon the argument that the suit itself was not maintainable on account of the fact that the matter was already adjudicated on an earlier occasion in Civil Suit No. 13-A/67 which was decided by way of a compromise decree on 04.10.1967. Counsel for the appellant also made his submission in respect of the fact that the two Courts below have committed an error of law in as much as not appreciating the fact that admittedly the plaintiffs and the defendants were near relatives and in fact co-shares in the said property and therefore principle of adverse possession would not have been applicable in the case of the plaintiffs against the defendants. In support of his contention, learned counsel for the appellant relied upon two decisions i.e. Gurdwara Sahib Vs. Gram Panchayat village Sirthala and another (2014) 1 SCC 669 , and Smt. Pramila Bai & Others Vs. Smt. Tarabati & Others 2014 (4) CCC 134, submitting that these are the two latest judgments passed on the question of adverse possession. 7. Per contra, Shri Prafull N. Bharat, counsel appearing for respondents 1 to 6 opposing the appeal of the appellant submitted that at this juncture, in the present state of facts, the instant appeal itself is not maintainable and he vehemently argued that the appeal stands abated in the factual background of the case. Therefore this Court would be precluded from entering into the merits of the case while deciding the second appeal. According to the counsel for the respondent/plaintiffs, in the instant appeal, the admitted position is that the plaintiffs have an order in their favour vide judgment and decree dated 04.10.1997 in Civil Suit No. 65-A/96 which has further been affirmed and confirmed by the first appellate Court in Civil Appeal No. 67-A/97 and as such substantial right has accrued in favour of the plaintiffs by virtue of the two judgments passed by the Courts below. Counsel for the respondents submitted that during the pendency of the present appeal before this Court, respondent No. 2 Chetan S/o. Budhu Bhatra, respondent No. 3(a) Mst. Asti widow of Narsingh Bhatra and respondent No. 5 Sukhdeo S/o. Mandhar who were all plaintiffs before the Court below expired and the appellants have failed to bring the legal representatives of these three dead persons on record. Counsel for the respondents submitted that at a very belated stage, the appellants have in fact also tried to substitute the legal representatives of deceased respondents 2, 3(a) and 5 by moving an appropriate application under Order 22 Rule 4 of CPC along with an application u/s. 5 of Limitation Act. Both the applications for substitution and for condonation of delay were rejected by this Court on 21.01.2014 holding that since the applications were moved at a much belated stage and that the reasons assigned by the appellants for condonation of delay also not being sufficient and justifiable, the same was rejected. Counsel for the respondents further submitted that since the order of rejection of the application for substitution was not questioned or challenged before any Court of law, the same has attained finality. So far as the judgment and decree passed by the trial Court which has also been affirmed by the first appellate Court is concerned, the same stands abated in respect of all the respondent/plaintiffs for the reason that the decree which has-been passed by the Court below was not severable and that the decree was a joint decree in favour of the plaintiffs as a whole. According to the counsel for the respondents, once the judgment and decree gets abated in respect of some of the persons who have died, it automatically stands abated as a whole on account of the fact that the judgment was not severable. 8. Counsel for the respondents relied upon the decision rendered in this regard by the Hon'ble Supreme Court in State of Punjab Vs. Nathu Ram AIR 1962 SC 89 , wherein in paragraphs - 6 & 8 it has been categorically held: (6)....The test to determine this has been described in diverse forms. 8. Counsel for the respondents relied upon the decision rendered in this regard by the Hon'ble Supreme Court in State of Punjab Vs. Nathu Ram AIR 1962 SC 89 , wherein in paragraphs - 6 & 8 it has been categorically held: (6)....The test to determine this has been described in diverse forms. Courts will not proceed with an appeal (a) when the success of the appeal may lead to the Court's coming to a decision which be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the Court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the Court and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective, that is to say, it could not be successfully executed. (8) The difficulty arises always when there is a joint decree. Here again, the consensus of opinion is that if the decree is joint and indivisible, the appeal, against the other respondents also will not be proceeded with and will have to be dismissed as a result of the abatement of the appeal against the deceased respondent........The specification of shares or of interest of the deceased respondent does not affect the nature of the decree and the capacity of the joint decree holder to execute the entire decree or to resist the attempt of the other party to interfere with the joint right decreed in his favour. The abatement of an appeal means not only that the decree between the appellant and the deceased respondent has become final, but also, as a necessary corollary, that the appellate Court cannot, in any way, modify that decree directly or indirectly." Similarly, another judgment rendered in this regard is a Constitutional Bench decision of the Hon'ble Supreme Court in the matter of M/s. Ramchand Jagdish Chand Vs. Union of India and others AIR 1963 SC 563 , wherein paragraph 8 of the said judgment the Apex Court has in very categorical term held as under: "(8)...Here again, the consensus of opinion is that if the decree is joint and indivisible, the appeal, against the other respondents also will not be proceeded with and will have to be dismissed as a result of the abatement of the appeal against the deceased respondent. Different views exist in the case of joint decrees in favour of respondents whose rights in the subject matter of the decree are specified. One view is that in such cases, the abatement of the appeal against the deceased respondent will have the result of making the decree affecting his specific interest to be final and that the decree against the other respondents can be suitably dealt with by the appellate Court. We do not consider this view correct. The specification of shares or of interest of the deceased respondent does not affect the nature of the decree and the capacity of the joint decree holder to execute the entire decree or to resist the attempt of the other party to interfere with the joint right decreed in his favour. The abatement of an appeal means not only that the decree between the appellant and the deceased respondent has become final, but also, as a necessary corollary, that the appellate Court cannot, in any way, modify that decree directly or indirectly. The reason is plain. It is that in the absence of the legal representatives of the deceased respondent, the appellate Court cannot determine anything between the appellant and the legal representatives which may affect the rights of the legal representative under the decree." 9. Counsel for the respondents also relied upon the two decisions in this regard i.e. Sardar Amarjit Singh Kalra (Dead) By LRS and Others 2003 (3) SCC 272 , Vs. Pramod Gupta (SMT) (Dead) By LRS. and Others (2006) 3 SCC 605 , and N. Khosla Vs. Rajlakshmi (Dead) and Others. In the case of Sardar Amajit 2003 (3) SCC 272 , (Supra) which again is a constitutional Bench judgment, after considering various judgments in this regard, the Supreme Court in paragraph-34 has held as under: 34. Pramod Gupta (SMT) (Dead) By LRS. and Others (2006) 3 SCC 605 , and N. Khosla Vs. Rajlakshmi (Dead) and Others. In the case of Sardar Amajit 2003 (3) SCC 272 , (Supra) which again is a constitutional Bench judgment, after considering various judgments in this regard, the Supreme Court in paragraph-34 has held as under: 34. In the light of the above discussion, we hold: (1) Wherever the plaintiffs or appellants or petitioners are found to have distinct, separate and independent rights of their own and for the purpose of convenience or otherwise, joined together in a single litigation to vindicate their rights, the decree passed by the court thereon is to be viewed in substance as the combination of several decrees in favour of one or the other parties and not as a joint and inseverable decree. The same would be the position in the case of defendants or respondents having similar rights contesting the claims against them. (2) Whenever different and distinct claims of more than one are sought to be vindicated in one single proceedings, as the one now before us, under the Land Acquisition Act or in similar nature of proceedings and/or claims in assertion of individual rights of parties are clubbed, consolidated and dealt with together by the courts concerned and a single judgment or decree has been passed, it should be treated as a mere combination of several decrees in favour of or against one or more of the parties and not as joint and inseparable decrees. (3) The mere fact that the claims or rights asserted or sought to be vindicated by more than one are similar or identical in nature or by joining together of more than one of such claimants of a particular nature, by itself would not be sufficient in law to treat them as joint claims, so as to render the judgment or decree passed thereon a joint and inseverable one. (4) The question as to whether in a given case the decree is joint and inseverable or joint and severable or separable has to be decided, for the purposes of abatement or dismissal of the entire appeal as not being properly and duly constituted or rendered in competent for being further proceeded with, requires to be determined only with reference to the fact as to whether the judgment/decree passed in the proceedings vis-a-vis the remaining parties would suffer the vice of contradictory or inconsistent decrees. For that reason, a decree can be said to be contradictory or inconsistent with another decree only when the two decrees are incapable of enforcement or would be mutually self-destructive and that the enforcement of one would negate or render impossible the enforcement of the other." The said decision rendered in the case of Sardar Amarjit 2003 (3) SCC 272 , (Supra) has been reiterated by the Supreme Court in the case of N. Khosla (2006) 3 SCC 605 , (Supra). For the foregoing reasons, counsel for the respondents submitted that the appeal is not tenable now and deserves to be rejected. 10. Considering the submissions put forth by the rival parties, this Court is of the opinion that a perusal of the judgment of the trial Court itself would show that the same has been passed granting a decree of declaration of title in favour of the plaintiffs jointly over the suit premises. This decree has further been affirmed by the first appellate Court also and that on perusal of the decree itself would show that it is a joint decree which has been passed and that the right of the plaintiffs is jointly conferred upon the suit premises without there being any sort of partition, separation or segregation of the suit premises that would fall upon each of the plaintiffs. Indeed, it was a joint decree and not a decree which could be severable between the parties. So far as the judgment and decree passé 4 in favour of the deceased respondents 2, 3(a) & 5 is concerned, the same has attained finality and in the event of the instant second appeal is allowed, there would be a great conflict of interest between the rights accrued in favour of the deceased respondents and their legal heirs and the respondents now before this Court contesting the case. The Supreme Court in a repeatedly in its judgment referred to above have held that there should not be two conflicting decrees. 11. If we take into consideration the ratio laid down by the Hon'ble Supreme Court in the case of Badni (Dead) By LRS and Others Vs. Siri Chand (Dead) By LRS. and Others (1999) 2 SCC 448 , it would be evident that in the said case also the Hon'ble Supreme Court has held that once the decree was a joint decree which could not be separated or was not severable and that where the shares of the respondents were not classified, differentiated and distinct by meets and bounds, it has to be considered to be a joint decree which could not be severable. Thus, if the appeal in respect of some of the deceased persons stands abated, the whole appeal itself would result in abatement in view of the decisions rendered by the Supreme Court in the case of Badni (1999) 2 SCC 448 , (Supra) and also in view of the judgments in the case of Sardar Amarjit 2003 (3) SCC 272 , (Supra) and N. Khosla (2006) 3 SCC 605 , (Supra). For the foregoing reasons, this Court is of the opinion that the instant second appeal in the present facts and circumstances of the case is not further tenable and the need for answering the substantial question of law does not arise. Consequently, the instant appeal deserves to be and is accordingly rejected holding it to have abated as a whole.