A SHAHAZADA BI AND ORS.
v.
HALIMABI (SINCE DEAD) BY HER LRS.
JULY 30, 2004
B (S.B. SINHA AND S.H. KAPADIA, JJ.]
Code of Civil Procedure, 1908-0rder 22 Rule 4-Abatement of
suit-Suit for possession of rooms in separate possession of each of the
defendants-Defendants claiming to be tenants-in-common and have
C perfected their title by adverse possession to each of the rooms-During
pendency of the suit, one of the defendants died who had leased out the
room in his possession to other-Omission to implead legal representatives
of defendant-Right to sue-Held: Evidence showed different rooms to be
in possession of different defendant, as such interest of co-defendants
separate-Hence, suit will abate only as regard the particular interest of
D deceased defendant and not as a whole-Order of trial court right in
decreeing the suit ofplaintiffs only against defendants other than deceased
defendant.
Respondent-plaintiffs are wife and children ofE. According to the
E plaintiffs, the suit property was a self acquired property of E. Plaintiffs
filed suit for possession of seven rooms in the suit property, in separate
possession of each of the appellant-defendants. Defendants no. 1 to 4
pleaded that they were tenants-in-common and had joint interest in the
property. The said plea was negated in a previous suit where the decree
F became final. Defendants also perfected their title by adverse possession
over the suit property. During the pendency of the suit, defendant no.
4 who had let out the room in his possession to defendant no. 5, died
and the plaintiffs failed to take steps to bring the LRs of defendant no.
4 on record. Trial Court held that the property was self acquired
property of E, and also dismissed the claim of the defendants based on
G adverse possession. It held that on demise of defendant no. 4 and on
failure of the plaintiffs to implead LRs of defendant no. 4 on record,
the entire suit did not abate. Therefore, it decreed the suit against
defendants no. l to 3 and dismissed the suit against defendant no. 4.
However, lower appellate court held that since the plaintiffs had sought
H for a joint decree against defendants no. l to 4 and on the demise of
222
SHAHAZADA BI v. HALIMABI 223
defendant no. 4 and on failure to implead his LRs on record, the entire A
suit abated. In appeal, High court held that as each of the defendants
was in separate independent possession of each of the rooms, the reliefs
prayed for were divisible and the decree was enforceable separately
against each of the defendants and allowed the appeal, restoring the
decree of trial court. Hence the present appeal.
B
Dismissing the appeal, the Court
HELD : I. Order 22 Rule 4 of Code of Civil Procedure, 1908 lays
down that where within the time limited by law, no application is made
to implead the legal representatives of a deceased defendant, the suit C
shall abate as against a deceased defendant. This rule does not provide
that by the omission to imp lead the legal representative of a defendant,
the suit will abate as a whole. What was the interest of the deceased
defendant in the case, whether he represented the entire interest or
only specific part is a fact that would depend on the circumstances of D
each case. If the interests of the co-defendants are separate, as in case
of co-owners, the suit will abate only as regards the particular interest
of the deceased party and not as a whole. (229-D-F)
2. In the instant case, plaintiffs instituted the suit for recovery of
possession of seven rooms separately mentioning the rooms in possession E
of each of the defendants in the plaint and sought possession of each
of the rooms separately from each of the defendants. In the evidence,
plaintiffs produced and proved the map based on the description of the
seven rooms and there was no chal!enge to the map or to the
description of the suit property. Trial court on evidence found that F
n1ap showed different rooms to be in possession of different defendants
who claimed to be tenants-in-common in possession of each of the seven
rooms with the consent of E and have perfected their title by adverse
possession to each of the seven rooms. Trial court rejecterl their claim.
Trial Court further found that defendant no. 4 was in possession of a
room leased out to defendant no. 5 for rent. However, defendant no. G
4 had died during tlie-pendency of the suit and plaintiffs failed to bring
on record the heirs of defendant no. 4. Taking into account the above
circumstances, trial court was right in holding that the entire suit did
not ahate but the suit against defendant no. 4 alone stood dismissed
as abated. As such the trial court was right in decreeing the suit of the H
224 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.
A plaintiffs as prayed for only against defendant nos. 1 to 3 and dismissed
the suit against defendant no 4. [231-B-C; 229-C-D)
Masilamani Nadar v. Kuttiamma & Ors., (1960) 4 Kerala Law
Journal 936, approved.
B Sant Singh & Anr. v. Guiab Singh & Ors., AIR (1928) Lahore 573
and Amarjit Singh Katra (Dead) by LRs. & Ors. v. Pramod Gupta (Smt)
(Dead) by Lrs. & Ors., [2003) 3 SCC 272, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5507 of
c 1999.
From the Judgment and Order dated 31.8.1998 of the Karnataka High
Court in Regular Second Appeal No. 76 of 1996.
P.R. Ramasesh and Ms. Vandana Jalan for the Appellant.
D G.V. Chandra Sekhar and P.P. Singh for the respondent.
The Judgment of the Court was delivered by
KAPADIA, J. : This appeal by special leave is filed by the
E defendants against the judgment and order of the Karnataka High Court
dated 31st August, 1998 passed in R.S.A. No. 76of1996 whereby the High
Court allowl'!d the second appeal and restored the judgment and decree of
the trial Court decreeing the original suit filed by the respondents-plaintiffs
for declaration of title to property described more particularly in schedule
'A' and for possession of seven rooms in possession of the defendants-
F appellants herein, which seven rooms form part of schedule 'A' and more
particularly described as schedule 'B' to the plaint.
The short point which arises for consideration in this civil appeal is
- whether the suit for possession filed by the respondents-plaintiffs stood
G abated in its entirety as held by the Civil Judge at Kolar Gold Fields in
Regular Appeal No. 13 of 1991 (hereinafter referred to for the sake of
brevity as "the lower appellate Court").
The facts giving rise to this civil appeal are as follows:-
H Plaintiffs are the wife and children of Essanullah. They inter alia
SHAHAZADA BI v. HALIMABI [KAPADIA, J.) 225
filed suit no.417 of 1979 in the court of Additional Munsiff at Kolar Gold A
Fields for declaration of title to schedule 'A' property and for possession
of seven rooms in schedule 'A' more particularly described in schedule 'B'
to the plaint. In the present matter, we are concerned with plaintiffs right
to recover possession of the seven rooms. According to the plaintiffs, the
property (schedule 'A') was a self acquired property of Essanullah who B
died on 8.1.1970, whereas according to the defendants herein the said
property belonged to all the heirs of Moosa Saheb, the father ofEssanullah,
K.M. Ziauddin (defendant no. 3) and K.M. Obeidulla (defendant no. 4).
In 1973, after the demise of Essanullah, defendant no. I herein (daughter-
in-law of Moosa. Saheb) had instituted suit no. 49 of 1973 in the court of
Subordinate Judge, Thirupathur, North Arcot district, Tamilnadu for C
partition alleging that the property in question was not the self acquired
property of Essanullah and that they belonged to all the heirs of Moosa
Saheb. She was supported by defendants no. 2 to 4. However, that suit
was dismissed. It was held that the property in schedule 'A' including the
seven rooms was self acquired property of Essanullah.' The decree passed D
by the trial Court in suit no. 49 of 1973 was confirmed in appeal.
Consequently, the present suit was filed by the heirs of Essanullah for
declaration of title to properties mentioned in schedule 'A' and for recovery
of possession of the seven rooms more particularly described in schedule
'B' to the plaint. E
In the present suit, defendants no. I to 4 once again alleged that the
suit properties belonged to all the heirs of Moosa-Saheb and they denied
that the suit property was self acquired property of Essanullah. They
pleaded that Moosa Saheb had started business in tobacco. That Moosa
Saheb died on 6.3.1948. On his demise, his heirs continued the business F
as family business. The business was run in the name and style of Moosa
Tobacco House and after the death of Moosa, the tobacco business
continued in the name and style of K.M. Essanullah & Company. It was
pleaded in the written statement that all the heirs of Moosa Saheb were
tenants-in-common. That they were the partners of the Essanullah & G
Company. In the written statement, it was plead.ed that the suit property
was bought out of the income earned by Mis Moosa Tobacco House and
consequently, the suit property was the property of the heirs of Moosa
Saheb as tenants-in-common and not exclusive property of the deceased
Essanullah, from whom the plaintiffs claimed title. Alternatively, the H
226 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.
A defendants pleaded that they had perfected their title by adverse possession
as they, as heirs of Moosa Saheb, have been in permissive possession of
the seven rooms for more than 12 years. They conceded that defendant
no. 4 had let out a portion to the 5th defendant in 1961 on rent. However,
at the same time the defendants pleaded that all the heirs of Moosa Saheb
B had acquired a joint title in the property along with the plaintiffs; that the
suit property was a part of a common estate and consequently defendants
no. 3 and 4 (sons of Moosa Saheb) were entitled 2/15th share; that
defendants no. 1 and 2 and Hamida Begum as heirs of Rahamatulla were
also entitled to 2/15th share; and that similarly the plaintiffs as heirs of
C Essanullah were entitled to 2/l 5th share in the suit property. Therefore, it
was urged that the plaintiffs had no exclusive title to the suit property or
to any portion thereof except to the extent of2/l 5th share along with other
heirs of Moosa Saheb.
On above pleaclings, the trial Court framed certain issues. Two main
D issues framed by the trial court were - whether the suit property was the
self acquired property of Essanullah; and whether the defendants had
perfected their title by adverse possession over the suit property? During
the pendency of the suit, defendant no. 4 died on 8.5.1987. At the request
of the plaintiffs, time was granted repeatedly to bring the legal representatives
E of the 4th defendant on record. The plaintiffs failed to take steps, therefore,
on 1.8.1987, the trial Court recorded that as the steps to bring the LRs of
defendant no. 4 on record have not been taken, the suit against defendant
no. 4 alone shall stand abated. As stated above, in the present case, the
only point for determination is - whether the High Court was right in
coming to the conclusion that the suit against defendant no. 4 alone abated
F and that the entire suit did not abate? However, to complete the chronology
of the events, we may state that the trial Court came to the conclusion that
the suit property was the self acquired property of Essanullah. In this
connection, the trial Court placed reliance on the judgment and decree
passed in the earlier suit no. 49 of 1973, which decree was passed by the
G Subordinate Judge, Thirupathur, North Arcot district, Tamilnadu, and
which decree was affirmed by the appellate Court. The trial Court
dismissed the claim of the defendants herein based on adverse possession.
Consequently, the trial Court decreed the suit filed by the plaintiffs in the
r
present case for recovery of seven rooms more particularly described in
H schedule 'B' to the plaint. At this stage, it may be stated that the decree
SHAHAZADA BI v. HALIMABI [KAPADIA, J.] 227
of the trial Court for possession of seven rooms is based on the map (Ex.PS) A
showing the entire property in schedule 'A' and the seven rooms mentioned
in schedule 'B' in possession of each of the defendants. The trial Court
further found that the deceased defendant no. 4 admittedly had let out the
room in his possession to defendant no. 5, which indicated that defendant
no. 4 was occupying a separate room out of seven rooms. The trial Court B
further found that each of the four defendants had asserted their rights in
respect of the seven rooms as tenants-in-common and they had· asserted
that they were in adverse possession having perfected their title to each of
the seven rooms. In the circumstances, the trial Court held that on the
demise of defendant no. 4 and on failure of the plaintiffs to bring on record C
the heirs of defendant no. 4, the entire suit did not abate. The trial Court,
therefore, decreed the suit against defendants no. I to 3 and dismissed the
suit against defendant no. 4.
Being aggrieved by the decree passed by the trial Court, defendants
no. I to 3 preferred an appeal to the Civil Judge at Kolar Gold Fields being D
R.A. No. 13 of 1991. It was held in appeal that the plaintiffs had sought
for a decree jointly against defendants no. I to 4; that the plaintiffs have
not sought for decree against a particular defendant in respect of a
particular portion of the property; that the plaintiffs have not stated in their
plaint as to in what capacity defendants no. I to 4 were in possession of E
the seven rooms; that the plaintiffs have merely averred that they were in
possession of one portion of the building and that the defendants were in
occupation of the other portion of the building and, therefore, the plaintiffs
had sought for a joint decree against all the defendants and consequently
on the demise of defendant no. 4 and on the plaintiffs' failing to take steps F
to bring the LRs of defendant no. 4 on record, the entire suit stood abated.
The lower appellate Court further held that even though the plaintiffs had
sought relief against all the defendants jointly and severally, the trial Court
had proceeded to pass judgment and decree only against defendants no.
I to 3. In this connection, the lower appellate Court further observed that
the plaintiffs were not entitled to recover possession of the seven rooms G
from defendants no. I to 3 alone as there was no evidence adduced by the
plaintiffs as to the portion/rooms in possession of defendants no. I to 3.
That except for Ex.PS showing each room to be in possession of the said
defendants, no evidence has been led by the plaintiffs to show as to which
room was exactly in possession of defendants no. I, 2 and 3. That the relief H
228 SUPREME COURT REPORTS (2004} SUPP. 3 S.C.R.
A sought for against the defendants was joint and inseparable and consequently
the entire suit stood abated on the demise of defendant no. 4 and on failure
of the plaintiffs to bring the LRs of defendant no. 4 on record. It was held
that the interest of the defendants was joint interest and, therefore, it was
not possible to sue some of the defendants without the other. Consequently,
B the lower appellate Court dismissed the entire suit as having abated. The
appeal was allowed and the judgment and decree dated 28.11.1990 passed
by the trial Court in suit no. 417 of 1979 was set aside.
Aggrieved by the judgment passed by the learned lower appellate
Court dated 11.10.1995 in R.A. No. 13 of 1991, the plaintiffs preferred
C appeal under section I 00 CPC to the High Court. At this stage, it may
be mentioned that the High Court framed the following substantial question
of law at the time of admission of the second appeal:-
"Whether the dismissal by the first appellate Court on the ground
that the LRs of defendant no. 4 were not brought on record was
D correct in view of the dictum in 1972 (1) My. L.J. 656, 1974 (2)
KLR 123, AIR 1964 SC 234; and 1973 (2) My. L.J. 395?"
The High Court came to the conclusion that in the present case, the
facts were not in dispute and in the light of the above judgments as each
E of the defendants was in separate independent possession of each of the
rooms, the reliefs prayed for were divisible and the decree was enforceable
separately against each of the defendants. Accordingly, the second appeal
was allowed. The High Court restored the decree of the trial Court after
setting aside the judgment of the lower appellate Court. The High Court
F also remitted the matter to the lower appellate Court as an application was
made by the plaintiffs to bring the LRs of defendant no. 4 on record. The
lower appellate Court has been directed to deal with the rights of defendant
no. 4 alone as the decree has been made against other defendants no. 1 to
3. Hence, this civil appeal.
G We do not find any merit in this civil appeal. As stated above, the
plaintiffs instituted the suit inter alia for recovery of possession of seven
rooms more particularly described in schedule 'B' to the plaint. Schedule
'B' gave detailed de5cription of the suit property. Each of the seven rooms
has been marked on the sketch tendered in evidence as B 1 to 87. In the
H plaint, the original plaintiffs separately mentioned the rooms in possession
SHAHAZADA BI v. HALIMABI [KAPADIA, J.] 229
of each of the defendants vide paragraph no. 5. They gave a separate A
schedule to the plaint, which described the rooms in possession cif each
of the above defendants. Schedule 'B' also gave the dimension of each
room. Further, plaintiffs sought possession of each of the rooms separately
from each of the defendants vide paragraph no. 11 read with schedule 'B'
to the plaint. In the evidence, plaintiffs produced and proved the map B
(Ex.PS) based on the description of the seven rooms which tallied with the
description in schedule 'B'. Further, the defendants herein alleged that
they were in possession of the seven rooms with consent of Essanullah.
In the suit, the defendants further contended that they had perfected their
title in respect of each of the seven rooms by adverse title. The most C
clinching fact was that defendant no. 4 had died during the pendency of
the suit. Defendant no. 4 was in possession of a room leased out to
defendant no. 5 for rent. Taking into account the above circumstances, the
trial Court was right in holding that the suit against defendant no. 4 alone
stood dismissed as abated. The trial Court was, therefore, right in decreeing
the suit of the plaintiffs as prayed for only against defendants no. I to 3. D
Order 22 Rule 4 CPC lays down that where within the time limited by law,
no application is made to implead the legal representatives of a deceased
defendant, the suit shall abate as against a deceased defendant. This rule
does not provide that by the omission to implead the legal representative
of a defendant, the suit will abate as a whole. What was the interest of E
the deceased defendant in the case, whether he represented the entire
interest or only a specific part is a fact that would depend on the
circumstances of each case. If the interests of the co-defendants are
separate, as in case of co-owners, the suit will abate only as regards the
particular interest of the deceased party. [See: Masi/amani Nadar v. F
Kuttiamma & Ors. reported in (1960) 4 Kerala Law Journal 936). In the
case Sant Singh & Anr. v. Guiab Singh & Ors. reported in AIR (1928)
Lahore 573, it has been held that under Order 22 Rule 4 (3) read with Order
22 Rule 11 CPC where no application is made to implead the legal
representative of the deceased respondent, the appeal shall abate as against
the deceased respondent. That, so far as the statute is concerned, the appeal G
abates only qua the deceased respondent, but the question whether the
partial abatement leads to an abatement of the appeal in its entirety depends
upon general principles. If the case is of such a nature that the absence
of the legal representative of the deceased respondent prevents the Court
from hearing the appeal as against the other respondents, then the appeal H
230 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.
A abates in toto. Otherwise, the abatement takes place only in respect of the
interest of the respondent who has died. The test often adopted in such
cases is whether in the event of the appeal being allowed as against the
remaining respondents there would or would not be two contradictory
decrees in the same suit with respect to the same subject matter. The Court
B cannot be called upon to make two inconsistent decrees about the same
property, and in order to avoid conflicting decrees the Court has no
alternative but to dismiss the appeal as a whole. If, on the other hand, the
success of the appeal would not lead to conflicting decrees, then there is
no valid reason why the Court should not hear the appeal and adjudicate
upon the dispute between the parties. It was further heid in the said
C judgment that a distinction must be made between the cases in which there
is specification of shares or interests, and those in which there is no
specification of interests. That in cases where there is a specification of
share or interest, the appeal cannot abate as a whole. That in such cases,
the appeal abates only in respect of the interest of the deceased respondent
D and not as a whole. To the same effect is the ratio of the judgment of this
Court in the case of Sardar Amarjit Singh Katra (Dead) by LRs. & Ors.
v. Pramod Gupta (SMT) (Dead)by LRs. & Ors. reported in [2003] 3 SCC
272, in which it has been held that existence ofajoint right as distinguished
from tenancy-in-common alone is not the criteria but the joint character
E of the decree de hors relationship of the parties inter-se and the frame of
the appeal will take colour from the nature of the decree challenged. Laws
of procedure are meant to regulate effectively, assist and aid the object of
doing substantial and real justice. A careful reading of Order 22 CPC
would support the view that the said provisions were devised to ensure
F continuation and culmination in an effective adjudication. It was further
observed that the mere factthat a khata was a joint khata was not relevant
for deciding the question of abatement under Order 22, as long as each of
the appellants had their own independent, distinct and separate shares in
the property. It was held that wherever the plaintiffs are found to have
distinct, separate and independent rights of their own, joined together for
G sake of convenience in a single suit, the decree passed by the Court is to
be viewed in substance as the combination of several decrees in favour of
one or the other party and not as the joint decree. The question as to
whether the decree is joint and inseverable or joint and severable has to
be decided, for the purposes of abatement with reference to the fact as to
H whether the decree passed in the proceedings vis-a-vis the remaining
SHAHAZADA BI v. HALIMABI [KAPADIA, J.] 231
parties would suffer the vice of inconsistent decrees or conflicting decrees. A
A decree can be said to be inconsistent or contradictory with another decree
only when two decrees are incapable of enforcement and that enforcement
of one would negate the enforcement of the other.
In the present case, the 4th defendant was found by the trial Court B
to be in possession of one of seven rooms. He had let it out on rent to
defendant no. 5. The trial Court on evidence found that Ex.PS showed
different rooms to be in possession of different defendants who claimed
to be tenants-in-common in possession of each of the seven rooms. They
claimed to have perfected their title by adverse possession to each of the
seven rooms. There was no challenge to Ex.PS in evidence. Nor was there C
any challenge to description of the suit property in schedule 'A' and
schedule 'B'.
In the result, we do not find any merit in this civil appeal. Accordingly,
we dismiss the civil appeal and uphold the judgment of the High Court. D
However, in the facts and circumstances of the case, there shall be no order
as to costs.
N.J. Appeal dismissed.