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2015 DIGILAW 635 (ORI)

RANJAN PRADHAN v. STATE OF ORISSA

2015-11-18

D.DASH

body2015
JUDGMENT : D. Dash, J. 1. The appellants in this appeal have called in question the judgment and decree passed by the learned District Judge, Nayagarh in R.F.A. No. 01 of 2007. The present appellants with others had filed the suit for declaration for their right, title and interest over the suit land, confirmation of possession and for permanent injunction. The suit having been decreed, the State had carried an appeal. The appeal has been allowed and the judgment and decree passed in the suit decreeing the same in favour of the plaintiff have been set aside. Therefore, the unsuccessful plaintiffs have now filed this appeal under section 100 of the Code of Civil Procedure. The appellant Nos. 1 to 3 and 6 to 8 were the plaintiffs in the trial court and respondents in the lower appellate court. Appellant No. 4 and 5 are the legal representatives of Pathani Pradhan who was one of the plaintiffs as also a respondent. This Pathani Pradhan having died on 30.03.2012 i.e., after the disposal of the appeal in the lower appellate court, his legal representatives have joined with others in filing the appeal. However, though during pendency of the appeal in the lower appellate court, the plaintiffs namely, Gadadhar, Gurubari, the two sons of Kanhei Pradhan, died their legal representatives had not been brought on record and the appeal had stood abated against them. 2. The appeal has been admitted on the following substantial questions of law:-- "(1) Whether in view of the specific order of the lower appellate court passed on 08.05.2009 that the appeal stood abated against plaintiff Nos. 6 and 7, it was permissible in law and justified on the part of the lower appellate court to further proceed to dispose of the appeal on merit without holding that the appeal had abated as a whole? (2) Whether the lower appellate court is justified by entering into the merit of the case in setting aside the judgment and decree passed by the trial court decreeing the suit of the plaintiff declaring their rights jointly over the suit property and confirming their possession when the appeal had abated against plaintiff Nos. (2) Whether the lower appellate court is justified by entering into the merit of the case in setting aside the judgment and decree passed by the trial court decreeing the suit of the plaintiff declaring their rights jointly over the suit property and confirming their possession when the appeal had abated against plaintiff Nos. 6 and 7 and the judgment and decree in favour of the legal representatives of the plaintiff No. 6 and 7 had attained their finality which now gives rise to two conflicting decrees in respect of the same subject matter and among the parties?" 3. Heard the learned counsel for the appellants and learned Additional Government Advocate. I have carefully perused the judgments of both the courts. 4. Fact of the case is that the suit land measuring Ac. 0.32 decimals are said to be in the joint possession since time of their predecessors- in-interest of the plaintiffs. It is stated that land in question was in open, continuous and peaceful possession of their predecessors in interest all along without any interruption from any quarter and that the plaintiffs have been possessing exercising all sorts of rights as owners thereof. The trial court declared the right, title, interest and possession of the plaintiffs. The State then challenged the same by carrying appeal. In the appeal, consequent upon the death of plaintiff No. 6 and 7, their legal representatives were not substituted. So by specific order, the appeal stood abated as against them and thus the judgment and decree passed by the trial court in their favour attained finality finally enuring to the benefit of their legal representatives. The order to that effect was passed on 08.05.2009. However the lower appellate court being aware of the same and although the question was raised before it that it be held that the appeal has abated as a whole has not touched that aspect and rather has side tracked it and instead has gone to decide the appeal on merit on 17.03.2012 by setting aside the judgment and decree passed in favour of the plaintiffs and allowing the appeal. 5. The law stands crystalised to the effect that as to whether non-substituted of L.R.'s. of the Respondent-Defendants would abate the appeal in toto or only qua the deceased Respondent-Defendants, depends upon the facts and circumstances of an individual case. 5. The law stands crystalised to the effect that as to whether non-substituted of L.R.'s. of the Respondent-Defendants would abate the appeal in toto or only qua the deceased Respondent-Defendants, depends upon the facts and circumstances of an individual case. Where each one of the parties has an independent and distinct right of his own, not interdependent upon one or the other, nor the parties have conflicting interests inter se, the appeal may abate only qua the deceased Respondent. However, in case, there is a possibility that the court may pass a decree contradictory to the decree in favour of the deceased party, the appeal would abate in toto for the simple reason that the appeal is a continuity of suit and the law does not permit two contradictory decrees on the same subject-matter in the same suit. Thus, whether the judgment/decree passed in the proceedings vis-?-vis remaining parties would suffer the vice of the being a contradictory or inconsistent decree is the relevant test. (Budh Ram and Ors. V. Bansi and Ors., (2010) 11 SCC 476 , this Court after considering series of judgments rendered by this Court in the State of Punjab v. Nathu Ram (, AIR 1962) SC 89, Sri Chand v. Jagdish Pershad Kishan Chand, SC 1427, Ramagya Prasad Gupta v. Murli Prasad, (1973) 2 SCC 9 and Sardar Amarjit Singh Kalra v. Pramod Gupta, (2003) 3 SCC 72). 6. In the anvil of aforesaid settled position of law, the matter in hand now needs the examination so as to answer the above substantial questions of law as framed. The fact remains that by the decree of the trial court, the right, title, interest and possession of all the plaintiffs were declared. In view of abatement of the appeal against defendant No. 6 and 7, the decree in their favour stood final and attained its finality enuring to the benefit of their legal representatives i.e., judgment and decree of the trial court had attained their finality in respect of legal representatives of defendant No. 6 and 7 and thus as those favour them, under no circumstance, they can be deprived of reaping the benefit of it without being in accordance with law and being hit below the back. In fact with such status as successful litigants armed with a valid and lawful decree, they have been in enjoyment of same for all these years. In fact with such status as successful litigants armed with a valid and lawful decree, they have been in enjoyment of same for all these years. The legal representatives of all those defendant No. 6 and 7 could not have been hit below the belt in the way as done by the lower appellate court land in law they are not bound by the judgment and decree passed by the lower appellate court in dismissing the suit. The lower appellate court ought not to have sat over to decide the appeal on merit as though the judgment and decree of the trial court have been set aside, yet conflicting decree stands. The legal representatives of plaintiff No. 6 and 7 are not being arraigned in the appeal the decree in their favour declaring right, title, interest and possession over the suit land of their predecessors-in-interest can well protect their rights as per the said decree of the trial court. So, here is a case, where the appeal under no circumstances could have been said to have abated only qua the deceased plaintiffs and the lower appellate court was not within its legal competence to pass decree to the contrary to that of the trial court. In fact the lower appellate court ought to have avoided to enter into arena of the merit of the case. For an aforesaid discussion, the substantial questions of law are answered in favour of the appellants and against the respondents. In that view of the matter, the judgment and decree as passed by the lower appellate court being unsustainable in the eye of law are hereby set aside. It is needless to say that in view of above, the judgment and decree as passed by the trial court stand restored. The appeal is accordingly allowed. There shall however be no order as to costs. Final Result : Allowed