REPORTABLE  

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.            OF 2010 (Arising out of SLP (C) No. 8824 of 2008)

Budh Ram & Ors. …Appellants

Versus

Bansi & Ors. …Respondents

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. Leave granted.  

2. This  appeal  has  been  preferred  against  the  Judgment  and  

Order dated 30.11.2007 in FAO No. 345 of 2003 of the High Court of  

Himachal Pradesh at Simla by which it has upheld the Judgment and  

order  of  the  1st Appellate  Court  i.e.  the  Additional  District  Judge,  

Solan Camp, Nalagarh in Case No. 19-NL/13 of 2000, whereby the  

Appellate Court refused to condone the delay in filing the application  

for substitution of Legal Representatives (hereinafter called the LRs.)  

of the deceased respondent No.4, Smt. (Parwatu) and held that the  

appeal filed by the present appellants stood abated in toto.   

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3. The facts and circumstances giving rise to the present case are  

that  the respondents,  namely,  Tulsi,  Bansi  and Hariya,  all  sons of  

Daulatia, instituted Civil Suit No. 207/1 of 1994 against the present  

appellants and some of their predecessors-in-interest  alongwith Smt.  

Parwatu,  widow  of  Nanta,   a  proforma  defendant,  for  seeking  

declaration to the effect  that  plaintiffs/respondents were co-owners  

and  co-sharers  in  joint  possession  to  the  extent  of  17  Bighas,  8  

Biswas and Smt. Parwatu, proforma defendant No. 6 was co-owner  

and co-sharer in joint possession to the extent of 5 Bighas, 15 biswas  

comprised in Khewat/Khatuni Nos. 15-16, Kitats – 32, total measuring  

49  Bighas,  1  Biswa situated  in  Village  Malag,  H.B.  277,  Pargana  

Nawan  Nagar,  Tehsil  Nalagarh,  District  Solan  (H.P.)  with  the  

consequential relief of permanent prohibitory injunction restraining the  

appellants/ defendant Nos. 1 to 5 from causing ouster and decree for  

joint possession.   

4. The suit was contested by the present appellants.  However,  

defendant No. 6, Smt.  Parwatu did not enter appearance and did not  

contest the suit.  The present appellants had also claimed title over  

the suit land by way of adverse possession.  It is an admitted fact that  

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both the parties are descendants of the same ancestor Jalphu and  

certain mutation proceedings had been under challenge in the suit  

itself.   On  the  basis  of  the  pleadings,  issues  were  framed  and  

evidence was adduced.  After the conclusion of the trial of the suit,  

the Trial Court decreed the suit in favour of the plaintiffs/respondents  

and defendant No. 6, as prayed for vide Judgment and decree dated  

21.12.1999.   

5. Being aggrieved, the present appellants preferred Civil Appeal  

No.  19-NL/13  of  2000,  wherein  the  said  defendant  No.  6  Smt.  

Parwatu  was  impleaded  as  respondent  No.  4.   The  appeal  was  

contested  by  the  respondents/plaintiffs,  however,  Smt  Parwatu  

remained unrepresented before the 1st Appellate Court also.  During  

the pendency of the appeal, Smt. Parwatu, respondent No. 4,  died  

on 19.11.2000.  The present appellants preferred an application for  

substitution of the LRs of Smt. Parwatu, respondent No. 4, before the  

Ist  Appellate Court  on 16.10.2001, under order XXII  Rule 4 of the  

Code of Civil  Procedure, 1908 (hereinafter called as, “CPC”).  The  

said  application  was  duly  supported  by  an  affidavit,  however,  no  

application  for  condonation  of  delay  was filed  along with  the  said  

application.  It  was after  an inordinate delay that  an application for  

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condonation of delay was filed on 15.11.2002 without furnishing any  

explanation as to why the application could not be filed along with the  

application for substitution of LRs.   

6. The  said  application  was  contested  by  the  

respondents/plaintiffs  taking  a  specific  plea  that  the  appellants/  

applicants  were fully  aware of  the death of  Smt.  Parwatu as they  

were residing in same village. The present appellants/applicants had  

taken part in the last rites of the deceased Smt. Parwatu.  Thus, the  

respondents  sought for rejection of the said application.  

7. The  Appellate  Court  considered  various  aspects  and  issues  

involved  and  reached  the  conclusion  that  there  was  no  sufficient  

cause for the appellants/applicants to file an application with such an  

inordinate  delay  and,  therefore,  the  application  for  condonation  of  

delay  was  rejected.   The  Appellate  Court  further  came  to  the  

conclusion that in view of the fact that there was a joint possession  

and co-ownership of the respondents/plaintiffs and Smt. Parwatu, and  

as  the  Trial  Court  had passed a  joint  decree in  their  favour,  the  

appeal stood abated in toto.   

8. Being aggrieved and dissatisfied, the appellants preferred the  

FAO  before  the  High  Court  which  has  been  dismissed  by  the  

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impugned  Judgment  and  order  dated  30.11.2007.   Hence,  this  

appeal.   

9. Sh.  Rishi  Malhotra,  learned  counsel  appearing  for  the  

appellants, has urged a sole point before us that the facts of the case  

did not warrant abatement of the appeal as a whole. Share of Smt.  

Parwatu stood well defined and was restricted only to 5 Bighas, 15  

Biswas only, thus, appeal could abate only qua her. The courts below  

erred in observing that the appeal stood abated as a whole as the  

decree passed by the Trial Court was severable and separable so far  

as Smt. Parwatu  was concerned. Therefore, the appeal deserves to  

be allowed.   

10. On  the  contrary,  Sh.  Rajesh  Srivastava,  learned  counsel  

appearing for the respondents, has vehemently opposed the appeal,  

contending that  the  High Court  as  well  as the 1st Appellate  Court  

based their judgments on the correct interpretation and application of  

law.  No fault can be found with the said Judgments, as there was no  

partition between the parties.  The appeal is liable to be dismissed.  

11. We have considered the rival submissions made by the learned  

counsel for the parties and perused the record.   

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12. Abatement  takes  place  automatically  by  application  of  law  

without any order of the court.  Setting aside of abatement can be  

sought  once  the  suit  stands  abated.  Abatement  in  fact  results  in  

denial to hearing of the case on merits. Order XXII Rule 1 CPC deals  

with the question of abatement on the death of the plaintiff or of the  

defendant  in a Civil  Suit.   Order XXII  Rule 2 relates to procedure  

where one of the several plaintiffs or the defendants die and the right  

to sue survives.  Order XXII Rule 3 CPC deals with procedure in case  

of death of one of the several plaintiffs or of the sole plaintiff.  Order  

XXII Rule 4 CPC, however, deals with procedure in case of death of  

one of the several defendants or of the sole defendants.  Sub-clause  

(3) of Rule 4 makes it crystal clear that where within the time limited  

by law, no application is made under sub-Rule 1, the suit shall abate  

as against the deceased defendant.   

13. Provisions of Order XXII Rule 4 (4) CPC,  provide that in case,  

the deceased defendant did not contest  the suit  and did not file a  

counter affidavit, the substitution may not be warranted.  In the instant  

case, the High Court repelled the submission regarding application of  

Order  XXII  Rule  4(4)  CPC on  the  ground  that  the  said  provision  

requires the presentation of an application before the Court, before it  

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pronounces its judgment for seeking such a relief and once such an  

application is allowed, in that case, it can only be taken against the  

said defendant notwithstanding the death of such defendant and such  

a decree shall have the same force and effect as if it was pronounced  

before the death had taken place.  This view stands fortified by the  

Judgments of this Court in  Zahirul Islam Vs. Mohd. Usman & Ors.  

(2003) 1 SCC 476; and T. Gnanavel Vs. T.S. Kanagaraj & Anr. AIR  

2009 SC 2367.      

Thus,  it  has  rightly  been  held  by  the  High  Court  that  the  

provisions of Order XXII Rule 4(4) CPC were not attracted in the facts  

of this case.  

14. In  State of  Punjab Vs.  Nathu Ram AIR 1963 SC 89,  while  

interpreting the provisions of Order XXII Rule 4(3) CPC  read with  

Rule 11 thereof, this Court observed that an appeal abates as against  

the deceased respondents where within the time limited by law no  

application  is  made  to  bring  his  heirs  or  legal  representatives  on  

record. However, whether the appeal stands abated against the other  

respondents also, would depend upon the facts of a case.  

15. In  Sri Chand Vs.  M/s Jagdish Pershad Kishan Chand AIR  

1966 SC 1427, this Court held that in case one of the respondents  

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dies  and  the  application  for  substitution  of  his  heirs  or  legal  

representatives is not filed within the limitation prescribed by law, the  

appeal may abate as a whole in certain circumstances and one of  

them could be that when the success of the appeal may lead to the  

courts coming to a decision which may be in conflict with the decision  

between the appellant  and the deceased respondent and, therefore,  

it will lead to the court passing a decree which may be  contradictory  

and inconsistent to the decree which had become final with respect to  

the same subject  matter  between the appellant  and the deceased  

respondent in the same case.   

16. In  Ramagya Prasad Gupta & Ors.  Vs.  Brahmadeo Prasad  

Gupta & Anr. AIR 1972 SC 1181,  this Court  examined the same  

issue in a case of dissolution of a partnership firm and accounts and  

placed  reliance  upon  two  judgments  referred  to  immediately  

hereinabove and held as under:  

“16. ……..The 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 may be in conflict with the   decision  between  the  appellant  and  the  deceased   respondent  and,  therefore,  it  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   

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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. These three testes …………….. are not cumulative tests. Even if one of them is satisfied,   the court may dismiss the appeal”. (Emphasis added)

17. In  Sardar Amarjit Singh Kalra & Ors. Vs.  Pramod Gupta &  

Ors. AIR 2003 SC 2588,  a Constitution Bench of this Court, while  

dealing with the similar issue, has after considering large number of  

judgments of this Court, reached the following conclusion :-

“(a) In case of "Joint and indivisible decree",   "Joint and inseverable or inseparable decree",   the  abatement  of  proceedings  in  relation  to  one  or  more  of  the  appellant(s)  or  respondent(s)  on  account  of  omission  or  lapse and failure to bring on record his or their   legal representatives in time would prove fatal   to  the  entire  appeal  and  require  to  be  dismissed in toto as otherwise inconsistent  or contradictory decrees would result and  proper  reliefs  could  not  be  granted,   conflicting with the one which had already  become  final  with  respect  to  the  same  subject matter vis-a-vis the others; (b) the  question  as  to  whether  the  Court  can  deal  with an appeal after it abates against one or   the  other  would  depend  upon  the  facts  of   each  case  and  no  exhaustive  statement  or  analysis  could  be  made  about  all  such  circumstances wherein it would or would not  be  possible  to  proceed  with  the  appeal,   despite abatement, partially; (c) existence of a  joint  right  as  distinguished  from  tenancy  in  common alone is not the criteria but the joint   

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character  of  the  decree,  dehors  the  relationship  of  the  parties  inter  se  and  the  frame of the appeal, will take colour from the  nature  of  the  decree  challenged;  (d)  where  the  dispute  between  two  groups  of  parties  centerd around claims or based on grounds  common  relating  to  the  respective  groups  litigating  as  distinct  groups  or  bodies  --  the  issue involved for consideration in such class  of cases would be one and indivisible; and (e)   when the issues involved in  more than one  appeals  dealt  with  as  group  or  batch  of  appeals, which are common and identical in  all such cases, abatement of one or the other   of the connected appeals due to the death of   one or more of the parties and failure to bring   on  record  the  legal  representatives  of  the  deceased  parties,  would  result  in  the  abatement of all appeals.” (Emphasis added)

The  Court  further  observed  that  any  relief  granted  and  the  

decree ultimately passed, would become totally unenforceable and  

mutually  self-destructive  and  unworkable  vis-à-vis  the  other  part,  

which had become final. The appeal has to be declared abated in  

toto. It is the duty of the court to preserve and protect the rights of the  

parties.   

18. In Shahazada Bi & Ors. Vs. Halimabi AIR 2004 SC 3942, this  

Court considered the same issue and held as under :-

“………………That,  so  far  as  the  statute  is   concerned,  the  appeal  abates  only  qua  the  deceased  respondent,  but  the  question  

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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 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 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.” (Emphasis added)

19. Therefore, the law on the issue stands crystallised to the effect  

that  as  to  whether  non-substitution  of  LRs  of  the  

defendants/respondents would abate the appeal in toto or only qua  

the deceased defendants/respondents,  depend 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 inter-dependent  

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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-à-vis remaining  

parties would suffer the vice of being a contradictory or inconsistent  

decree is the relevant test.  

20. The  instant  case  requires  to  be  examined  in  view  of  the  

aforesaid settled legal propositions. Every co-owner has a right  

to  possession  and enjoyment  of  each and every part  of  the  

property equal to that of other co-owners.  Therefore, in theory,  

every co-owner has an interest in every infinitesimal portion of  

the subject matter, each has a right irrespective of the quantity  

of its interest, to be in possession of every part and parcel of  

the property jointly with others.  A co-owner of a property owns  

every part of the composite property along with others and he  

cannot be held to be a fractional owner of the property unless  

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partition takes place. In the instant case a declaratory decree  

was  passed  in  favour  of  respondents/plaintiffs  and  Smt.  

Parwatu to the effect that they were co-owners, though, they  

had  specific  shares  but  were  held  entitled  to  be  in  “joint  

possession”.   The  appellants/applicants  had  sought  relief  

against  Smt.  Parwatu before the 1st Appellate court  as there  

was a decree in her favour, passed by the Trial Court where  

Smt. Parwatu had been impleaded by the appellants/applicants  

as proforma respondent.  In such a fact-situation,  she had  a  

right to contest the appeal.  Once a decree had been passed in  

her favour, a right had vested in her favour. On her death on  

19.11.2000,  the  said  vested  right  devolved  upon  her  heirs.  

Thus,  appeal  against  Smt.  Parwatu  stood  abated.    In  the  

instant case, the 1st Appellate Court rejected the application for  

condonation of delay as well as the substitution of LRs of Smt.  

Parwatu, respondent No. 4 therein.  The only question remains  

as to whether the appeal is abated in toto or only in respect of  

the share of Smt. Parwatu.  The High Court has rightly reached  

the  conclusion  that  there  was  a  possibility  for  the  Appellate  

Court to reverse the Judgment of the Trial Court and in such an  

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eventuality, there could have been two contradictory decrees,  

one in favour of Smt. Parwatu and the other, in favour of the  

present  appellants.   The view taken by the High Court  is  in  

consonance with the law laid down by this Court consistently.  

The facts of the case do not warrant any further examination of  

the matter.  

21. In view of the above, the appeal lacks merit and is accordingly  

dismissed.  No order as to costs.         

…………………………….J. (P. SATHASIVAM)

……………………..… …..J. New Delhi, (Dr. B.S. CHAUHAN) August  5, 2010

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