ORDER Defendant nos. 3, 4, 5 and 6 have preferred this appeal against the order dated 25.9.2004 passed by the learned Additional District Judge-Xth, Patna, in Title Appeal no. 63 of 1999 holding that the entire appeal has abated as they (appellants) did not take steps to set aside the abatement of the Title Appeal which has been filed against the judgment and decree dated 15.6.1999 passed by the learned Sub-Judge-VIth, Patna, in Title Suit no. 10 of 1988. 2. Kailash Mahto and his sons, namely, Ram Ashray Mahto, Mithilesh Mahto, Chhote Mahto, Lalan Mahto, Munna Mahto and Binod Mahto had filed Title Suit no. 10 of 1988 for declaration of absolute and perfect title on the suit land and the house described in schedule-I of the plaint and also for declaration that the defendants have got no right, title and interest therein and defendant no. 6, namely, Smt. Sharda Devi, wife of Satya Narain Rai, did not acquire any title and possession of the suit land on the basis of sale deed dated 16.9.1993 which was brought into existence during the pendency of the Title Suit no. 280 of 1983 and the sale deed of the defendant no. 6 in respect of the suit land is illegal, null and void, inoperative, ineffective, unauthorized, without consideration and mere papers transaction. 3. The case of the plaintiffs, in brief, is that Chhotan Mahto had a son Kailash Mahto and Kailash Mahto had six sons. Kailash Mahto and his six sons, who are plaintiffs in this case, are the members of the joint family and as plaintiff no. 1 Kailash Mahto had become very old, Ram Ashray Mahto (plaintiff no. 2 ) is the Karta of the joint family. The plaintiffs had ancestral house in Mouza-Dhimoi, P. S. Harnaut, District-Patna at present Nalanda and the plaintiffs’ family had one kucha mud built house and no other landed property was there. 35 years ago Kailash Mahto (plaintiff no. 1) abandoned his village and came to Patna Town and started plying rickshaw and began to live in Mouza-Dhakanpura presently known as Boring Canal Road, Patna. 1.39 acres of land bearing plot no. 54, Khata no. 507 under Touzi no. 35 years ago Kailash Mahto (plaintiff no. 1) abandoned his village and came to Patna Town and started plying rickshaw and began to live in Mouza-Dhakanpura presently known as Boring Canal Road, Patna. 1.39 acres of land bearing plot no. 54, Khata no. 507 under Touzi no. 227 in mouza Dhakanpura, P.S. – Phulwari at present Shri Krishnapuri, Patna, stands recorded in the name of Ajit Mahto, son of Lakhraj Mahto and Harihar Mahto and Lakshman Mahto, sons of Gopi Mahto and Kumari Banlata De acquired entire area of plot no. 54 from Khatiyani raiyat and had been coming in possession and got building constructed in the southern portion of plot no. 54 and started a girls’ school and she was working as one of the teachers and the entire land measuring 1.39 acres including the building on the southern portion of plot no. 54 came to be known as Subhash Kanan. Plaintiffs are the privileged tenants and men of backward community and Kailash Mahto and his wife helped Banlata De in house-work and Banlata De had love and affection for Kailash Mahto and having been pleased from the service of Kailash Mahto and his wife, treated Kailash Mahto as her son. Banlata De became pleased with the service of Kailash Mahto and gave western portion of plot no. 54 measuring 92 feet in length from east to west and 32 feet in width from north to south in plot no. 54 described in schedule no. I of the plaint, to Kailash Mahto for construction of house and for residence and she got settled Kailash Mahto in that land. Kailash Mahto constructed permanent house in the said land from his own fund and have been living there with the members of his family since 1958. He also constructed a brick-built house in the year 1958-59 and constructed three rooms in the western side and thatched it with tiles and has been living there with the members of the family and also constructed a hut on the eastern portion of the land by the side of Boring Canal Road, Patna. The members of his family have been holding shops of fruits and now at that place Ram Ashray Mahto (plaintiff no. 2) is earning from the painting. Plaintiff no. 1 also planted Sisam tree and Papaya plants. The members of his family have been holding shops of fruits and now at that place Ram Ashray Mahto (plaintiff no. 2) is earning from the painting. Plaintiff no. 1 also planted Sisam tree and Papaya plants. The plaintiffs have also constructed Tulsi Chaura in the courtyard and fixed deity of Bajrang Bali and Shivji near Tulsi Chaura. They also planted a Bargad tree which is standing near the deity of Shivji. They have also kept cattle there. 4. Banlata De died unmarried and her property devolved upon her nephew Ashish Kumar De who died leaving behind his widow Bani De and his son Debashish De who succeeded the property of Ashish Kumar De. The plaintiffs are in possession of land since 1958 uninterruptedly without any objection within the knowledge and exclusion of Banlata De and her heirs, successors and everybody else in the locality. By adverse possession also the plaintiffs have acquired title and possession over the suit land and the house. It is further stated that defendant no. 6 purchased the land including the suit land during the pendency of the Title Suit no. 280 of 1983 pending in the court of Sub-Judge-I, Patna (Kailash Mahto v. Bani De & ors.) and defendant nos. 3 to 6 had full knowledge and during the pendency of the Title Suit no. 280 of 1983 defendant no. 6 purchased the litigations and sale deed dated 16.9.1983 in respect of the suit land is illegal, null and void, inoperative and without consideration. 5. Defendant nos. 1 and 2 and 2(a) did not appear, who are the vendors of defendant no. 6. Therefore, the suit proceeded ex parte against them. Defendant nos. 3 to 6 filed written statement and contested the suit. 6. After the contest the suit was decreed by the learned Sub-Judge-VIth Patna, vide the judgment and decree dated 15.6.1999. Against the judgment and decree passed in Title Suit No. 10 of 1988, defendant nos. 3 to 6 filed Title Appeal no. 63 of 1999 against the plaintiffs excluding Chhote Mahto and his heirs. During the pendency of the appeal, Kailash Mahto (plaintiff no. 1-respondent no. 1) died and a petition for substitution was filed by the appellants for substituting the widow and two daughters of Kailash Mahto. Objection to this petition was filed by respondent nos. 2 to 6. the plaintiffs. 7. It was contended on behalf of respondent nos. During the pendency of the appeal, Kailash Mahto (plaintiff no. 1-respondent no. 1) died and a petition for substitution was filed by the appellants for substituting the widow and two daughters of Kailash Mahto. Objection to this petition was filed by respondent nos. 2 to 6. the plaintiffs. 7. It was contended on behalf of respondent nos. 2 to 6 that the appellants have not given the names of heirs of Chhote Mahto, the pre-deceased son of Kailash Mahto. It is admitted case of both the parties that Chhote Mahto was plaintiff no. 4 in Title Suit no. 10 of 1988 who died after the judgment of the suit but the heirs of Chhote Mahto have not been impleaded by the appellants in the memo of appeal. As such, the appeal abated much earlier and no steps were taken for setting aside the abatement. Chhote Mahto died before filing of the appeal leaving behind his widow, Meena Devi and three minor sons, namely, Ajit, Amit and Ankit and his mother Smt. Ram Jyoti Devi as his nearest legal heirs and none of them has been impleaded as respondents in the appeal knowingly and with dishonest intention. As such, the appeal has abated as a whole and the matter of abatement is still pending. It was further contended that respondent nos. 1 to 6 filed a petition dated 19.5.2001 under Order 22 Rule 9 of the Code of Civil Procedure by mentioning the aforesaid fact and the appellants filed its objection on 25.1.2001 and the rejoinder of which was filed on 29.5.2001 by respondent nos. 1 to 6 and petition for abatement, objection and rejoinder remained pending for hearing. Since the appeal has already abated, there is no question of substitution of any other respondent. 8. After hearing both the parties, it was held by the impugned order that the petition dated 19.5.2001 was filed on behalf of respondent nos. 1 to 6 under Order 22 Rule 9 of the Code of Civil Procedure stating therein that plaintiff no. 4, Chhote Mahto died leaving behind his heirs but none of them was impleaded by the appellants, as such, the appeal has abated as a whole. In the instant case, there is a decree in favour of the plaintiffs. 1 to 6 under Order 22 Rule 9 of the Code of Civil Procedure stating therein that plaintiff no. 4, Chhote Mahto died leaving behind his heirs but none of them was impleaded by the appellants, as such, the appeal has abated as a whole. In the instant case, there is a decree in favour of the plaintiffs. Suppose the appeal is allowed, then there will be two inconsistent decrees, One in favour of the heirs of Chhote Mahto that they have got title in the suit land and the house and the other will be that they have no title. It has been held that there will be two contradictory decrees with respect to the same subject matter in the same litigation, if the appellants succeed, hence the entire appeal has abated as the appellants did not take any step to set aside abatement. As such, the appeal was dismissed as abated. 9. Learned counsel for the appellants has submitted that Chhote Mahto did not die during the pendency of the appeal. So there is no question of abatement of the appeal. Respondent no. 1 Kailash Mahto, the father of Chhote Mahto (plaintiff no. 4) was already there to see and protect his interest. Moreover, the suit property was the personal property of Kailash Mahto and during his life time his son had got no title and interest. Principle of abatement could not be accepted in this case. The competency of appeal is a different question. It was further submitted that Chhote Mahto was a minor and he was represented by his father as a guardian since his interest was protected by his father. As such, the appeal would not abate. In support of his contention he has relied upon a Full Bench decision of the Patna High Court reported in AIR 1987 Patna 239 (Sudama Devi and others v. Jogendra Choudhary and others). In that case during the pendency of the appeal by defendants, minor died and mother, who was Class I heir of deceased, was not brought on the record within time. It was held that the appeal did not abate as the father became his legal representative as intermeddler on minor’s death and mother was allowed to be brought on record. He has also relied upon a decision in the case of Mohd. Hussain (dead) by Lrs. It was held that the appeal did not abate as the father became his legal representative as intermeddler on minor’s death and mother was allowed to be brought on record. He has also relied upon a decision in the case of Mohd. Hussain (dead) by Lrs. and others v. Gopibai and others reported in 2008(3) SCC 233 . He has also submitted that Title Suit should not have been decreed as the title by settlement and title by adverse possession cannot go simultaneously. This submission is not essential to be discussed at this stage as the impugned order has not been passed on the merit of the appeal. It has also been submitted that during the pendency of the appeal Interlocutory Application no. 1504 of 2013 has been filed under Order 1 Rule 10 read with Section 151 of the Code of Civil Procedure for adding the names of the heirs of the deceased Chhote Mahto and Kailash Mahto as party respondent nos. 9 and 15 in this appeal. It has been submitted that the heirs of Chhote Mahto and Kailash Mahto should be added as party to this appeal. 10. Learned counsel for the plaintiffs-respondents and learned counsel for the proposed respondents have vehemently opposed the contention of the learned counsel for the appellants and have submitted that the court of appeal below has rightly passed the order. It was within the knowledge of the appellants that Chhote Mahto (plaintiff no. 4) died after the judgment, which is also apparent from ground no. 46 of the memo of Title Appeal. Moreover, the remaining plaintiff-respondent nos. 1 to 6 had filed petition dated 19.5.2001 under Order 22 Rule 9 of the Code of Civil Procedure that Chhote Mahto died leaving behind his widow Meena Devi, three minor sons and mother. Appellants filed objection dated 25.5.2001 but no petition was filed for addition of class-I legal heirs and representatives of Chhote Mahto (plaintiff no. 4). They have further submitted that it appears from page 40 of the impugned judgment passed by the learned Sub-Judge that the learned trial court has held that the plaintiffs have acquired title by way of adverse possession and they are the privileged tenants. As such, the suit was also decreed in favour of Chhote Mahto (plaintiff no. 4) but the heirs of Chhote Mahto (plaintiff no. 4) were not made parties in the appeal. As such, the suit was also decreed in favour of Chhote Mahto (plaintiff no. 4) but the heirs of Chhote Mahto (plaintiff no. 4) were not made parties in the appeal. If the appeal is allowed, there will be two judgments, one in favour of the heirs of Chhote Mahto and another will be against them. As such, the learned court of appeal below has rightly passed the impugned order. 11. After hearing the learned counsels for both the parties and on perusal of the records, it appears that Chhote Mahto was plaintiff no. 4 in Title Suit no. 10 of 1988. He was not a minor. It was plaintiff no. 7, Binod Mahto (respondent no. 5), who was minor under the guardianship of his father in the Title Suit. Chhote Mahto (plaintiff no. 4) was not impleaded in the Title Appeal no. 63 of 1999. It appears from ground no. 46 of the memo of appeal that death of Chhote Mahto was within the knowledge of the appellants. His heirs were not impleaded as parties on the ground that no interest of the suit property was devolved on him during the life time of Kailash Mahto. Secondly, the plaintiffs-respondents filed a petition dated 19.5.2001 under Order 22 Rule 9 of the Code of Civil Procedure before the court of appeal below that Chhote Mahto died leaving behind his widow Meena Devi, three minor sons, namely, Ajit Anand, Amit Anand and Ankit Anand and mother Smt. Ram Jyoti Devi as his nearest legal heirs but none of them was impleaded as respondents in that appeal knowingly, deliberately and intentionally. The appellants filed objection on 25.5.2001 to the petition dated 19.5.2001 filed by the plaintiffs under Order 22 Rule 9 C.P.C., but the appellants did not take any step to implead the heirs of Chhote Mahto (plaintiff no. 4) in the appeal. Learned trial court has held that the plaintiffs have acquired title by way of adverse possession and being privileged tenants and defendant no. 6, Sharda Devi, wife of appellant no. 1, has not acquired any title to the suit property under the sale deed dated 16.9.1993. 12. 4) in the appeal. Learned trial court has held that the plaintiffs have acquired title by way of adverse possession and being privileged tenants and defendant no. 6, Sharda Devi, wife of appellant no. 1, has not acquired any title to the suit property under the sale deed dated 16.9.1993. 12. In the Full Court decision in the case of Sudama Devi and others (supra), the minor son died and he was under the legal guardianship of his father and father was party in the appeal and became his legal representative as intermeddler and the mother was allowed to be brought on record. But here Chhote Mahto (plaintiff no. 4) was not a minor under the guardianship of his father. He has acquired independent right and title. But his heirs were not made parties in the appeal. 13. In the case of Mohd. Hussain(Dead) by Lrs. and others (supra), it was held that ordinarily the court does not regard a decree binding upon a person who was not impleaded in the action. However, there exist some important exceptions : (i) Where by the personal law governing the absent heir, the heir impleaded represents his interest in the estate of the deceased, the decree would be binding on all the persons interested in the estate. (ii) If there be a debt justly due and no prejudice is shown to the absent heir, the decree in an action where the plaintiff has after bona fide enquiry impleaded all the heirs known to him will ordinarily be held binding upon all persons interested in the estate. (iii) The court will also investigate, if invited, whether the decree was obtained by fraud, collusion or other means intended to overreach the court. Therefore, in the absence of fraud, collusion or other similar grounds, which taint the decree, a decree passed against the heirs impleaded binds the other heirs as well even though the other persons interested are not brought on record. In that case, the father and his two sons were mortgagees in relation to the premises in question. After death of father the suit was filed for redemption of mortgage by making the two sons as party to the dispute but not the two married daughters of the father. In that case, the father and his two sons were mortgagees in relation to the premises in question. After death of father the suit was filed for redemption of mortgage by making the two sons as party to the dispute but not the two married daughters of the father. One of the daughters of the father was already dead and the married daughter was not in occupation of the suit premises nor was she staying with her father at the time of his death. As such, it was held that it cannot be said that the suit was not maintainable in law in absence of the two married daughters. In the present case, the deceased Chhote Mahto was one of the plaintiffs. The suit was decreed and the plaintiffs were held to be in possession of the suit property and they acquired right, title also on the basis of adverse possession. His heirs were necessary parties and the death of Chhote Mahto was also known to the defendants-appellants and after filing of the appeal the plaintiffs-respondents had filed petition disclosing the names of the Class-I heirs of Chhote Mahto (plaintiff no. 4) but the defendants-appellants did not take any step to bring his heirs on the record. In my view, the decision rendered in the case of Mohd. Hussain (Dead) by Lrs. and others (supra) also does not apply in the facts and circumstances of this case. 14. The question whether the entire appeal will abate or not depends on the circumstances of a particular case has been dealt with in the case of Munshi Singh and others v. Babulal Singh and others reported in AIR 1977 Patna 29 in para-10 of the judgment and the relevant part is quoted below. Para-10. …... “ The question, whether the entire appeal will abate or not, will depend on the circumstances of a particular case, but the criterion to determine the question is whether in the event of the decree being allowed as in favour of the remaining appellants, there would or would not be contradictory decrees in same litigation with respect to the same subject-matter. (See the observation in Janak Sahu v. Anant Jha ( AIR 1958 Pat 8 ). (See the observation in Janak Sahu v. Anant Jha ( AIR 1958 Pat 8 ). In the present case, I have no doubt that, if the appeal of the remaining appellants is permitted to be allowed, the decision will be inconsistent with the decree against defendant No. 4, which has become final.” 15. The principle of this decision is very much applicable in the facts and circumstances of this case. In the present case, if the appeal before the court below is allowed, there will be one decision for the plaintiffs-respondents, and there will be another decision in favour of the heirs of Chhote Mahto (plaintiff no. 4). The learned court of appeal below has followed the above principle and the decision and dismissed the appeal. 16. Considering the facts and circumstances stated above, I do not find any ground to interfere with the impugned order. The appeal is dismissed. The parties will bear their own costs. 17. Since the heirs of plaintiff-respondent no. 1, Kailash Mahto and the heirs of Chhote Mahto (plaintiff no. 4) have not been impleaded as respondents in the court of appeal below, there is no necessity to implead them as respondents in this appeal. Thus, the substitution petition vide I. A. no. 1504 of 2013 stands disposed of.