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PETITIONER: BADNI (DEAD) BY L.RS.  & ORS,,ETC.  ETC,

       Vs.

RESPONDENT: SIRI CHAND (DEAD) BY L.RS.  & ORS., ETC.

DATE OF JUDGMENT:       15/02/1999

BENCH: K. Venkataswami, A.P. Misra.

JUDGMENT:

D E R

       In all  these  appeals,  the  common  question  that arises for consideration is whether the High Court of Punjab and  Haryana  was  right  in  dismissing  the Regular Second Appeals as abated on account of the  death  of  one  of  the appellants.

       Brief  facts  leading to the filing of these appeals are as under:-

       The first respondent herein {since deceased), second respondent  and  the  husband  of   the   third   respondent (hereinafter referred to as the ’Plaintiff -respondents’ for convenience)  filed  eight  suits for possession of the suit land by way of redemption  in  the  Court  of  Sub-Judge,lst Class, Palwal,  District  Gurgaon.  The appellants contested the    suits,     contending     inter     alia,that     the plaintiff-respondents were not the successors-in-interest of the  deceased  Durga  Devi, to whom the suit land originally belonged.  It was claimed by the plaintiff-resppondents that their father, Charan Singh, was adopted by one Rattan Singh, who was, admittedly, entitled  to  succeed  along  with  the appellants on  the  death  of  Durga Devi.  The adoption was disputed by the contesting defendants (appellants herein) in the suits.    However,  the  Trial  Court  as  well  as  the Appellate  Court held that the adoption was true and binding on the defendants.  As a matter of  fact,  the  Trial  Court decreed two suits out of eight suits and dismissed the other six suits.    The  reasons for dismissal need not detain us. Against    the    dismissal    of     six     suits,     the plaintiffs-respondents  preferred  six  appeals  before  the District Judge, Gurgaon,  and  the  learned  District  Judge allowed their  appeals.  Against the judgment of the learned District Judge, the aforesaid R.S.As.  were preferred,

       As pointed out earlier, the High Court dismissed the appeals on the ground that the legal representatives of  one Shiv  Lal,  one of the appellants before it, was not brought on record and, therefore, the appeal filed by Shiv Lal stood abated.  As a result of  abatement  of  Shiv  Lal’s  appeal, according  to  the  High Court, the other appeals also stood abated.  Because of the common issue regarding the  adoption of" plaintiff’s predecessor-in-interest, there cannot be two conflicting decrees.  In other words, the adoption issue was common  and  decisive  in all the appeals pending before the High Court and dismissing one appeal alone on the ground  of

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abatement  and  allowing  the  other  appeals  to proceed on merits might end in conflicting decrees in  case  the  other appeals are accepted on merits.

       Mr.    Nambiar,   learned  senior  counsel  for  the appellants, submitted that.  the High Court was not right in dismissing the connected appeals  on  the  ground  that  the legal  representatives  of one of the deceased appellants in one R.S.A.  were not brought on record.   According  to  the learned  counsel, the decision of the High Court was against the provision of Order 22  Rule  4  of  the  Code  of  Civil Procedure.   In  support  thereof,  he  placed reliance on a judgment of this Court in Balwant Singh & Anr.   etc.    Vs. Daulat Singh (dead)  by  L.Rs.    &  ors.  [JT 1997 (5) S.C. 703].

       On the other hand, learned  counsel,  appearing  for the  respondents  submitted that the High Court was right in holding that on account of a common issue in ail the appeals the death of one of the appellants in one R.S.A.   resulting in  abatement  of that appeal, will also result in abatement of other appeals.  In support of his contention,  he  placed reliance  on  two judgments of this Court in State of Punjab Vs.  Nathu Ram [AIR 1962 SC 893 and Sri Chand &  Ors.    Vs. M/s Jagdish Pershad Kishan Chand & Ors.  [AIR 1966 SC 1427].

       We  have considered the rival submissions and we are of the view that the High Court was right in coming  to  the conclusion  that  the  decree  was  based  on a common issue against the appellants in all  the  six  R.S.As.    and  the failure  to  bring  the  legal representatives of one of the deceased appellants in one R.S..A.  will result in abatement of other appeals.   Otherwise,  there  will  be  conflicting decrees in  the  event  of  other  R.S.As.  being allowed on merits, which cannot be allowed.

       We have noticed earlier that the  common  issue  for consideration  in  all the appeals before the High Court was whether  the  claim   of   the   plaintiff-respondents   for possession  of  the  suit  land on the basis of adoption was sustainable.  The Courts below having found the adoption  in favour  of  the plaintiffs, the consequence will be that the issue of adoption in respect  of  Shiv  Lal’s  appeal  would become  final  in that R.S.A., resulting in the abatement of that R.S.A.  as  well  as  other  R.S.    Appeals  to  avoid conflicting decrees.

       This Court in Nathu Ram’s case (supra) laid down the following test:-

       "The  test  to  determine this has been described in diverse forms.  Courts will not proceed with  anappeal;  (a) when  the  success  of  the  appeal  may lead to the Court’s coming to a  decision  which  be  in.    conflict  with  the decision  between the appellant and the deceased respondent, and therefore which 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 subjectmatter  between the  appellant  and  the  deceased  respondent; (b) when the appellant  could  not  have  brought  the  action,  for  the necessary  relief  against  those  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

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executed."

       In  Sri  Chand’s  case  (supra  ),  this Court again reiterated the same view by observing as follows :-

       "Counsel for the first respondent contended that the appeal  had  abated  in  its  entirety  because the heirs of Basant Lal had not been brought on record, and the ground on which the judgment of the High Court proceeded was common to all the sureties.  In  our  view,  this  objection  must  be upheld.  The appeal of Basant Lal has abated since the legal representatives  to  his estate have not been impleaded, and the record of the appeal is defective.  That is  not  denied by the  appellants.    But  is  is  urged that this Court is competent to setaside an order of  the  High  Court  in  its entirety on the ground that it is not sustainable in law and in  any  event  to set aside the order insofar as it affects the claim of appellants 1 and 3 and  the  third  respondent. Support  was  sought  to be derived for the first contention from 0.41 R.4 of the Code of  Civil  Procedure  and  it  was urged  that  even if the decree be assumed to have proceeded on a ground common to all the sureties, it is  open  to  any one or more of the sureties to appeal from the order and the appellate  Court may reverse or vary the decree in favour of all the sureties.  This plea stands refuted by the  judgment of this  Court  in  Rameshwar  Prasad  V.    Shambehari  Lal Jagannath, AIR 19&3 SC 1901.  It was held by this  Court  in Rameshwar Prasad’s case, ATR 1953’ 3C 1901 that an appellate Court,  has  no  power  to  proceed  with  an appeal ’and to reverse and vary the decree in favour of all the plaintiffs, or defendants under 0.41 R.4 when the decree proceeds  on  a ground common  to all the plaintiffs.  or defendants, if all the plaintiffs or the defendants appeal from the decree  and any  of them dies dies and the appeal abates so far as he is concerned."

       In  the  light of the decisions of this Court and in view of the facts of these cases, there cannot be any  doubt that  the  High  Court was perfectly right in dismissing all the appeals as abated.’

       The decision cited by the learned  counsel  for  the appellants is  distinguishable  on facts.  In that case, the Court has given a  finding  of  fact  that  the  decree  was divisible.    Therefore,   that   judgment   will   have  no application to the facts of the present cases.

       In the  circumstances,  the  appeals  fail  and  are accordingly dismissed with no order as to costs,

       In view of  the  above,  all the I.  As.  will stand disposed of accordingly.