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2014 DIGILAW 692 (PAT)

Sheo Kundal Chaudhary v. Laldeo Chaudhary

2014-06-20

AMARESH KUMAR LAL

body2014
AMARESH KUMAR LAL, J.:–This appeal is directed against the order dated 17.12.2004 passed by the learned 4th Additional District Judge, Siwan in Title Appeal No.78/1993 by which it has been held that the whole appeal has abated due to non-substitution of heirs of appellant no.4 Padum Chaudhary. 2. The plaintiff-respondent no.1 had instituted Title Suit No.155/89 in the court of Sub-Judge, Siwan for declaration of title and confirmation of possession over the land bearing Plot No.3924 of Khata No.491, Area 1 Bigha of village-Sarsar. 3. The case of the plaintiffs, in brief, is that the aforesaid land came in possession of the defendant no.1 Birendra Prasad Chaudhary (respondent no.5) by means of a private partition and he has been coming in possession of the same exclusively. On 6.09.1989, defendant no.1 executed a sale deed in favour of plaintiffs and he gave possession to the plaintiffs over the suit land. Defendant nos. 2 to 6 filed their joint written statement. Their case is that there was no partition in the family of defendant no.1 and the suit land never fell in the share of defendant no.1. The properties are joint among the defendant no. 1, his father and his brother. Brahmdeo Pd. executed a registered sale deed in favour of the defendants on 17.10.1989 with respect to the plot no.3924, area 10 Kathas. Sone Lal also executed a sale deed in favour of the defendants on 16.10.1989 with respect to the same plot no.3924 measuring 10 Kathas. Since the date of purchase, the defendants are coming in possession. The plaintiffs have no right over the suit land. Admittedly, the suit land belongs to Brahmdeo’s family, who had two sons- Birendra Prasad Chaudhary, defendant no.1 and Sone Lal. Birendra Pd. Chaudhary executed a sale deed in favour of the plaintiffs, whereas, Brahmdeo and Sone Lal executed sale deed in favour of defendants. Birendra Pd. Chaudhary also executed a deed of cancellation against the sale deed executed in favour of the plaintiffs. The suit was decreed. Against that judgment and decree, the title appeal no.78/93 was filed by the defendants-appellants. Chaudhary executed a sale deed in favour of the plaintiffs, whereas, Brahmdeo and Sone Lal executed sale deed in favour of defendants. Birendra Pd. Chaudhary also executed a deed of cancellation against the sale deed executed in favour of the plaintiffs. The suit was decreed. Against that judgment and decree, the title appeal no.78/93 was filed by the defendants-appellants. When the title appeal was at the final hearing, a petition was filed on behalf of the applicant Binod Kumar Chaudhary, respondent no.6 and others on 19.01.2001 stating therein that appellant no.4 Padum Chaudhary died on 19.05.1995 (with petition to condone the delay) leaving behind the legal heirs and they are the legal heirs of the deceased Padum Chaudhary. A petition was also filed for setting aside the abatement order. Rejoinder was filed by the respondents and after hearing the parties, the appellate court below rejected the substitution petition filed by the appellants Binod Chaudhary and others (Respondent nos. 6 to 9) and the learned appellate court below held that the appeal has abated as a whole vide order dated 13.07.2001. Binod Kumar Chaudhary and others filed M.A.No.457/2001 in this Court. Vide order dated 10.04.2003 passed in M.A.No.457/2001 by this Court, the order dated 13.07.2001 passed by the learned 4th Additional District Judge, Siwan in Title Appeal No.78/93 was set aside and remanded the case to the appellate court below to consider as to whether the appeal should abate as a whole or not. Thus, the Title Appeal No.78/93 was again heard by the learned 4th Additional District Judge. After hearing both the parties, the learned appellate court below has held that the appeal has abated against Padum Chaudhary, appellant no.4 and decree was indivisible and a concrete one against all the defendants-appellants and there is no scope of making it divisible, as such, the whole appeal has abated. 4. The learned counsel for the appellants has submitted that the learned court below has failed to consider that the application for setting aside the abatement has resulted in failure of justice. The High Court set aside the entire order passed in Title Appeal No.78/1993. Therefore, the court below should have considered the point whether there was sufficient cause for setting aside the abatement. In the previous order, the High Court has only made observation regarding the substitution of the heirs of appellant no.4 Padum Chaudhary. The High Court set aside the entire order passed in Title Appeal No.78/1993. Therefore, the court below should have considered the point whether there was sufficient cause for setting aside the abatement. In the previous order, the High Court has only made observation regarding the substitution of the heirs of appellant no.4 Padum Chaudhary. But in the order portion, the entire order has been set aside. There was a partition and one co-sharer cannot transfer coparcenaries property and as such, the plaintiffs have not acquired any title. 5. She has further submitted that the court below should have considered as to whether a right to sue survives to the surviving plaintiffs or against the surviving defendants and whether the surviving plaintiffs can alone sue or the surviving defendants could alone be sued in absence of the deceased plaintiff or the defendant. In this case even after the death of appellant no.4 Padum Chaudhary, the right to sue survives, as such, the whole appeal will not abate. 6. She has further submitted that the earlier order passed by this Court in M.A.No.457/2001, this Court has merely observed that the court below has rightly rejected the substitution petition of the heirs of Padum Chaudhary and the impugned order dated 13.07.2001 was set aside. In support of her contention, she has relied upon a Full Bench decision in the case of Yogendra Bhagata Vs. Pritlal Yadav and others reported in 2009 (3) PLJR 697 . 7. The learned counsel for the respondents has submitted that the abatement against appellant no.4 Padum Chaudhary has been confirmed by the previous order of the High Court dated 10.04.2003 passed in M.A.No.457/2001 which has not been challenged before the appropriate court. It cannot be agitated now. The decree is inseparable, as such, the whole appeal will abate. In support of his contention, he has relied upon a decision in the case of Sardar Amarjit Singh Kalra Vs. Pramod Gupta reported in 2003 (3) Supreme Court Cases 272. 8. It cannot be agitated now. The decree is inseparable, as such, the whole appeal will abate. In support of his contention, he has relied upon a decision in the case of Sardar Amarjit Singh Kalra Vs. Pramod Gupta reported in 2003 (3) Supreme Court Cases 272. 8. After hearing the learned counsel for both the parties and on perusal of the impugned order as well as previous order of this Court dated 10.04.2003 passed in M.A.No.457/2001, it appears that vide order dated 13.07.2001 passed by the learned 4th Additional District Judge in Title Appeal No.78/93, the abatement of the appeal so far the heirs of Padum Chaudhary (appellant no.4) in the title appeal has been confirmed by the High Court, that order has not been challenged by any of the parties, as such, the abatement of the appeal of appellant no.4 (Padum Chaudhary) has become final. In the last portion of that order i.e. 10.04.2003, it has been held as follows :— “But here it is required to give opportunity to both the parties as other appellants already there on record as to whether the appeal should abate as a whole or not, on construction of the suit itself because against the decree being recorded in respect of the plaintiffs’ suit when several defendants are there then some of the defendants might be satisfied with the decree and may not prefer an appeal but some of the defendants may prefer an appeal. So by that alone it cannot be said on the death of one of the appellants, the appeal should abate as a whole. In that way, regarding that portion of the abatement of the appeal as a whole being Title Appeal No.78/1993, as held by the impugned order dated 13.07.2001, is hereby set aside and the matter is sent back to the court below for reconsideration of the matter afresh after giving an opportunity of hearing to both the parties”. 9. In this view of the matter, it cannot be held that the whole order dated 13.07.2001 passed in Title Appeal No.78/1993 was set aside by this Court in M.A.No.457 of 2001 passed on 10.04.2003. 10. It further appears from the order dated 10.04.2003 passed in M.A.No.457/2001 that the Court has held that the order refusing to set aside the abatement of appeal of appellant no.4 is correct. 10. It further appears from the order dated 10.04.2003 passed in M.A.No.457/2001 that the Court has held that the order refusing to set aside the abatement of appeal of appellant no.4 is correct. It has been held in clear terms that the definitely the appeal is abated in respect of appellant no.4. 11. In this view of the matter, it is not open to the appellants to submit that the matter of abatement of the appeal against appellant no.4 Padum Chaudhary is still open before this Court. 12. So far the question of abatement of the whole appeal is concerned; it has been found that the defendants-appellants have their definite share in the suit land. As such, the right to sue and to be sued exists for the suit land. The decision reported in 2003 (3) SCC 272 (supra) does not help the respondents. It has been held by the Hon’ble Supreme Court that Order 22 C.P.C. should be construed as a flexible tool of convenience with a view to do real, effective and substantial justice. In case of death of some of the appellants during pendency of the appeal, court should allow the applications for bringing their legal representatives on record even if filed belatedly, having regard to serious manner in which it would jeopardize effective adjudication, on merits, rights of other remaining appellants. Applications should be liberally considered, whether decree appealed against is joint and inseverable or severable and separable. 13. Since the right of appeal of other defendants-appellants survives, as such, in my opinion, the impugned order is not fit to be sustained. It is set aside. The appellate court below is directed to decide the appeal on its own merit expeditiously. In the result, this appeal is allowed. The parties will bear their own costs. 14. I.A.No.3175/2011 filed under Section 151 CPC and under Order 39 Rule 1 and 2 C.P.C. for restraining the plaintiffs from taking forceful possession of the suit land stands disposed of. ?