, .  

A CHAYA AND ORS.  v. ~  

BAPUSAHEB AND ORS.  

JANUARY rl, 1993  

B [KULDIP SINGH AND P.B. SAWANT, JJ.)  

AbatemenHuit by members of public for declaration of customary  right to bury dead in suit land-Suit decreed by Trial Court-Decree upheld  by District Court-During pendency of appeal defendant No.2 dies but heirs  

c not brought on record nor plea of abatement raised-In second appeal before  High Court by defendant No.I name of Defendant No.2 deleted -/Jecree set  aside against defendant Nos.I & 2 allowed to remain against othe~eirs  of Defendant No.2 appealed to this Cowt-Held that according to plaintiffs  right to sue survived, despite death of Defendant No.2 against the wJw.e suit  

D  land and against all the surviving defendants-Hence appeal had not abated.  

Code of Civil Procedure-Order 41, R 34-The present case was fit for  ex.err:ise of power under-Non ex.err:ise of power has resulted in miscarriage  of justice and contradictory results in respect of same'subject matter.  

E  The suit was filed by 56 members of public claiming declaration of  

customary right to bury the dead in the land R.S. No. 975/1 admeasurlng  

2 acres and 38 G. and R.S •. No. 975/2 admeasurlng 5 acres, against 15  original defendants. Defendants 1 to 3 to the suit were brother-owners of  the land. The owner-defendants sold portions or the suit land and defen- dants 4 to 15 were the purchasers of the said portions. Both the owners  

F and the vendees were joined as defendants to the suit as they denied th.e  plaintiff customary right to bury the dead in the land. In the suit, a  permanent Injunction restraining the defendants from obstructing the ------plaintiffs In the exercise of their said right, was also claimed.  

G  The evidence disclosed that defendant 1 claimed interest in R.S. No.  

975/1, defendant 2 in R.S. No. 975/2 and defendant 3 claimed no Interest in  either or the pieces of land. Defendants 1 and 2 opposed the reliefs claimed  by the plaintiffs contending that the suit land was not a ground and tbat the .,.  Municipality had provided sufficient land for burying the dead elsewhere. The  contentions of defendants 1 and 2 wen adopted by defendants 4 to 8. In  

H addition, they contended that they were bona fide purchasers of different  286

i  CHAYA v. BAPUSAHEB "]137  

portions or the suit land under l'ellistered sale-deeds, and they had con- A  structed honses after taking necessary permission from the Mnnlcipallty •  

. .....,.. _  On 27th March, 1!167, the Trial C!)Ul't decreed the suit against aU  

defendants. Defendant No. 1 (elder brother out of, the three brother  owners) alone llled an appeal to the District Conrt being Regular Appeal  

B No. 1236 of 1!167. He joliied defe111laats 2 and 3 as respondents SS and S6  to the appeal. Similarly, be jolaed pnrchaser-cleCendants also as respon·  dents to the appeal. Defendant I challenged the whole or the decree and  

did not restrict his appeal to K.S. No. 97S/l alone In which he had claimed  ·~·  

ownership befcn the Trial Court.  

c  During the pendency or the appeal, on 17th September, 1970, defen·  

dant 2, I.e., respondent SS died leaving behind his widow and minor  children. They were, however, not brought on record in the appeal. Plain·  tiff-respondents at no stage in the appeal raised t'fmlea of abatement or  the appqti. The District Court decided the appeal o merits and ~lsmlssed  

D the same conllnnlng the decree or the Trial Court In Cavour of the plain·  "'"'(' tiffs.  

Against the decision of the District Court, again defendant I alone  Oiied a Second Appeal In the High Court claallenging the whole of the  decree without any reservation either regarding the land or the parties. In E  fact, defendant 2 although, be had died In the meanwhile, was also shown  

~·· as respondent SS to the Second Appeal. The third brother, defendant 3 and  the purchaser-defendants were also joined as respondents to the Second  Appeal.  

During the pendency of the Second Appeal, the High Court, by an F  order, deleted the name of defendant 2 (respondent SS) from the record.  On merits, the High Court held that the customary right was not estab-

~  llshed and set aside the decree of the 1iial Court. However, the High Court  restricted the decree to the appellaDt i.e~ deCendant I only. The decree  against defendants 2 and 3 and purchaser-defendants was left undls·  

G turbed.  

The widow and the children of defendant 2, I.e., the present appel·  

"'  !ants, moved the High Court by a Review petition, to modify the decree and  to extend the relief to their land also, viz., R.S. ~. 97S/2. The High Court  did not entertain the Review Petition as being bprred by limitation. H

288 SlJl>REME COURT REPORTS (1993) 1 S.C.R.  

A In appeal by the widow and the chUdren of defeadant 2, this Hon'ble  Conrt noted that die admitted facts were : Defendant 1 was the elder of  the three brothers and there was nothing on record to show that thongb  defendant 1 claimed Interest only In R.S. 975/1 and defendant 2 In R.S.  97512 and defendant 3 claimed Interest In none, there was a partition of  

B the joint family property and the family bad not continued as joint.  

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The main questions, which fell for decision were :  

(i) Whether the appeal before the District Court bad abated In view  of the non-impleadment or the appellant; and  

(U) Whether the High Court could have passed the decree embracing  the entire suit property viz~ R.S. 975/1 and 975/2.  

HELD : 1. Under sec. 6 of the Hindu Succession Act, upon the death  of defendant 2, there was a notional partition vesting one-fourth share of  defendant 2 with the widow and the minor sons getting the remaining 3/4th  share. One..Courth share of defendant 2 will go by succession to class I heirs  comprising the widow, the two sons and the two daughters, who were the  present appellants. If the decree of the Trial Court as confirmed by the  Appellate Court is held final, it is only the one-fourth share of defendant  2 which will be burdened by the so called customary right of burial decreed  by the Trial Conrt In favour of the plaintiffs. Even this I/4th share will  stand further reduced by the area purchased by the 12 vendee/defendants  or by some of them as the case may be. The customary right claimed would  also be confined to a small patch of land. The Municipality bas also  rejected the request of the plaintiffs/respondents for acquiring the entire  land for burial purposes. [292D-F]  

2. The Plaintiffs bad themselves proceeded on the presumption that  they were concerned with the entire suit property and the customary right was  to be asserted against the whole of the suit property as such, which was  sulftclendy represented in law by the surviving defendants. Sioce, according  to tbe plalntlfrs, the right to sue survived against the whole property and  against tbe surviving defendants, notwithstanding the death of defendant 2,  the appeal bad not abated. The plaintiffs bad also allowed the appeal to  proceed on merits without raising the objection of abatement of appeal. They  were barred from nWiing the said objection in the Second Appeal before the  High Court. [29311-D]  

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CHAYA v. BAPUSAHEB 289  

On the fads of the case, it can be held lhat the Plaintllrslrespondents had A  ~- acquielced In the right rl ckfmdant 1 to ptoaed with the appeal In resped of the  

~lift suit p opeiV, In the absence of defendant 2 or bis legal representative.  [293F]  

Dondapani Sahu v. Aljuna Panda and others, (1969] 3 SCC 397,  applled. B  

3. The High Conrt had not noticed the true effect of Order 41, rule 33  -~ of the Code of Civil Procedure. This provision is based on a salutary prin-

c:iple that the Appellate Court should have the power to do complete justice  het1leen the parties. The object of the rule is also to avoid contradictory and  inconsistent decisions on the same question in the same suit. [293G, 2940] c  

For this purpose, the rule confers a wide discretionary power on the  Appellate Conrt to pass such decree or order as ought to have been passed  or as the case may require, notwithstanding the fact that the Appeal ls only  with regard to a part of the decree or that the party in whose favour the D  power ls proposed to be exercised has not filed any appeal or cross-ohjec- don. The power has to be exercised with case and caution. It ls also true  that In an appropriate case, the Appellate Conrt should not hesitate to  exercise the discretion conferred by the said rule. [294E-F]  

.>- Granting decree in favour or defendant 1 alone, when it was not E claimed by the plaindtfs in the original suit and based upon a common  right and asserted against the entire land which was the reUef claimed by  the plaintltfJ wotdd, In . the present case, result In contradictory lindlug,  viz., whereas the customary right could not be claimed against any portion  of the suit property as found by the High Court, the Trial Court decree  for exercise of sucla right would continue to operate against a part of the F  lud merely because the other defendants had not preferred any appeal. _ ... [29SE)  

In the clrcnmstances, this was a lit case where the High Court ought  to have exercised its power under Order 41, rule 34. In fact, the non-ex- erdse of the power has resulted not only In the miscarriage of jnstice, but  

G In contradictory result In respect of the same subject matter and based  on the same alleged right. [295F')  

Mllhabir Prasad v. !age Ram & Others, [1971) 1 SCC 265; Harihar  Prasad Singh v. Balmilci Prasad Singh, (1975) 1 sec 212; Giani Ram v.  Ramji Lal, (11169) 3 SCR !144 and Koksingh v. Smt. Deolcabai, [1976) 1  sec 383, relied on. H

290 SUPREME COURT REPORTS (1993] 1 S.C.R.  

A Appeal allowed.  ~  

CIVIL APPELLATE JURISDICTION : Civil Appeal No.1657 of  1984.  

From the Judgment and Order dated 8.1.1981 of the Karnataka High  B Court in C.P. No. 3 of 1981.  

S.B. Bhasme, A.S. Bhasme, S.S. Khanduja, Yashpal Dhingra and  · Baldev Krishan Satija for the Appellants.  

c  The Judgement of the Court was delivered by  

SAWANT, J. The suit. was filed by 56 members of public claiming  declaration of customary right to bury the dead in the land R. S. No. 975/1  admeasuring 2 acres and 38 G. and R.S. No. 975/2 admeasuring 5 acres,  against 15 original defendants. Defendants 1 to 3 to the suit were brother-

D owners of the land. The owner-defendants sold portions of the suit land  and defendants 4 to 15 are the purchasers of the said portions. Both the  owners and the vendees were joined as defendants to the suit as they  denied the plaintiffs customary right t.o bury the dead in the land. In the  suit, a permanent injunction restraining the defendants from obstructing  the plaintiffs in the exercise of their said right, was also claimed.  

E --+-.  The evidence disclosed that defendant 1 claimed interest iJi R.S. No.  

975/1, defendant 2 in R.S. No. 975/2 and defendant 3 claimed no interest  in either of the pieces of land. Defendants 1 and 2 opposed the reliefs  claimed by the plaintiffs contending that the suit land was not a burial  

F  ground and that the Municipality had provided sufficient land for burying  the dead elsewhere. The contentions of defendants 1 and 2 were adopted  by defendants 4 to 8. In addition, they contended that they were bona fide -.- purchasers of different portions of the suit land under registered sale- deeds, and they had constructed houses after taking nece.sary permission  from the Municipality. It does not appear from the record that the rest of  

G the defendants had filed their separate written statements.  

On 27th Mai;ch, 1967, the Trial Court decreed the suit against all the  ~ defendants in respect of both the suit properties viz., R.S. Nos. 975/1 and  

975/2.  

H 2. Against the decision of the Trial Court, defendant 1 (elder brother

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/  CHAYA v. BAPUSAHEB [SAWANT, J.] 291  

out of the three brother-owners), alone filed an appeal to the District Court  being Regular Appeal No. 1236 of 1967. He joined defendants 2 and 3 as  respondents 55 and 56 to the appeal. Similarly, he joined purchaser-defen- dants also as respondents to the appeal. It may be stated that in the appeal,  defendant 1 challenged the whole of the decree and did not restrict his  appeal to R.S. No. 'i75/1 elone in which he had claimed ownership before  the Trial Court.  

During the pendency of the appeal, on 17th September, l'i70, defen- dant 2 i.e., respondent 55 died leaving behind his widow and minor children  who are the appellants before us. They were, however, not brought on  record in the appeal. Plaintiff-respondents at no stage in the appeal raised  the plea of abatement of the appeal. The District Court decided the appeal  on merits and dismissed the same confirming the decree of !he Trial Court  in favour of the plaintiffs.  

Against the decision of the District Court, again defendant l alone  filed a Second Appeal in the High Court challenging the whole of the  decree without any reservation either regarding the land or the parties. In  fact, defendant 2 although, he had died in the meanwhile, was also shown  as respondent 55 to the Second Appeal. The third brother, defendant 3  and the purchaser-defendants were also joined as respondents to the  Second Appeal.  

During the pendency of the Second Appeal, the High Court, by an  order, deleted the name of defendant 2 [respondent 55] from the record.  On merits, the High court held that the customary right was not established  and set aside the decree of the Trial Court. However, the High Court  restricted the decree to the appellant i.e., defendant l only. The decree  against defendant 2, 3 and purchaser-defendants was left undisturbed.  

The widow and the children of defendant 2 i.e., the present appel- lants, moved the High Court by a Review Petition, to modify the decree  and to extend the relief to their land also viz., R.S. No. 975/2. The High  Court did not entertain the Review Petition as being barred by limitation.  Hence, the present appeal by the widow and the children of defendant 2.  

3. The questions of law which arise in the present case are two, viz.,  whether the appeal before the District Court had abated in view of the  

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non- impleadment of the appellants, and whether the High Court could H

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292 SUPREME COURT REPORTS (1993] 1 S.C.R.  

have passed the decree embracing the entire suit property viz., R.S. Nos.  975/1 and 975{2.  

4. Before answering the two questions, it is necessary to take note of  the relevant admitted facts in the case. Defendant 1 is elder of the three  owner-brothers. There is nothing on record to show that though defendant  1 claimed interest only in R.S. No. 975/1, and defendant 2 in R.S. No. 975{2  and defendant 3 claimed interest in none, there was a partition of the joint  family property, and the family had not continued as joint. However,. for  the purpose of the present appeal, we will hold that defendants 1 and 2  were holding the two pieces of land separately. As regards the purchaser- defendants, they were the vendees of different portions of both R.S. Nos.  975/1 and 975{2 and, therefore, they had interest in both the said pieces of  land along with defendants 1 and 2. It is also not disputed that there were  residential houses constructed, particularly, by the purchaser-defendants in  both the pieces of land. Under Section 6 of the Hindu Succession Act,  upon the death of defendant 2, there was a notional partition vesting 1/4th  share in defendant 2, with the widow and the minor sons together getting  the remaining 3/4th share. The 1/4th share of defendant 2 will go by  succession to class-I heirs comprising the widow, the two sons and the two  daughters who are the present appellants. If the decree of the Trial Court  as confirmed by the appellate court is held final, it is only the 1/4th share  of defendant 2 which will be. burdened by the so called customary right of  burial decreed by the Trial Cou,rt in favour of the plaintiffs. Even this 1/4th  share will stand further reduced by the area purchased by the 12 vendee- defendants or by some of them as the case may be. Thus; the customary  right claimed would be conlincd to a small patch of land surrounded by  residential houses. The recorft shows that an approach was made to the  Municipality to acquire the entire land for burial purposes. The  Municipality rejected' the said request by pointing out lirstly that enough  burial land was available elsewhere and that the present land being sur- rounded by houses was not suitable for the burial purposes.  

5. Coming now to the first question as to whether the appeal had  abated, admittedly, defendant 2 had died during the pendency of the appeal  before the District Court and the present appellants were not brought on  record. It is not disputed that the plaintiff-respondents knew of the death of  defendant 2 during the pendency of the appeal. Y ct, they did not take any  objection to appeal being heard on merits, and in fact, the appeal was heard

CHAYA v. BAPUSAHEB [SAWANT, J.] 293  

and decided on merit. The plaintiff-respondents did not raise any objection A  with regard to the abatement of appeal presumably because the decree of the  

-+-- Trial Court embraced both the suit lands and the relief relating to the suit  lands was based on the alleged customary right common to both the lands.  Defendant 1 was the elder brother and whatever the relationship of defen- dants 1 and 2 inter se between themselves on the one hand and between B  defendants 1, 2, 3 and the vendee-defendants on the other, the plaintiffs  proceeded on the presumption that they were concerned with the entire suit  property and the customary right was to be asserted against the whole of the  

--..r suit property as such, which was sufficiently represented in law by the  surviving defendants. Since according to the plaintiffs, the right to sue sur·  vived against the whole of the property and against the surviving defendants, c  notwithstanding the death of defendant 2, the appeal had not abated. Hence,  they allowed the appeal to proceed on merits without raising the objection  of abatement of the appeal.  

6. Since the plaintiff-respondent did not raise the objection with  D regard to the abatement of the appeal, they were barred from raising the  

said objection in the Second Appeal before the High Court. It is not  disputed that in the present case, the cause of action, viz., the alleged  customary right to burial did survive against the suit property as a whole.  In this connection, we may refer to the decision of this Court in Dondapani  Sahu v. Atjuna Panda and Others; (1969) 3 SCC 397 where it was held that E  when the parties proceeded almost by consent that the deceased was  represented by the surviving defendants, it was not open to the defendants  to have the matter reopened in appeal. On the facts of the present case  also, it can be held that the plaintiff-respondents had acquiesced in the  right of defendant 1 to proceed with the appeal in respect of the entire suit F  property, in the absence of defendant 2 or his legal representatives. . .  

~ 7. As regards the question as to whether the High Court could have  extended the operation of the decree to the entire suit property instead of  restricting it only to R.S. No. 975/1, we are afraid that the High Court has  

G not noticed the true effect of Order 41 Rule 33 of the Code of Civil  Procedure which reads as follows :  

"R.33. Power of Court of Appeal. • The Appellate Court  shall have power to pass any decree and make any order  which ought to have been passed or made and to pass or H  

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294 SUPREME COURT REPORTS (1993] 1 S.C.R.  

make such further or other decree or order as the case  may require, and this power may be exercised by the Court  notwithstanding that the appeal is as to part only of the  decree and may be exercised in favour of all or any of the  respondents or parties, although s.uch respondents or par- ties may not have filed any appeal or objection and may,  where there have been decrees in cross-suits or where two  or more decrees are passed in one suit, be exercised in  respect of all or/any of the decrees, although an appeal  may not have been filed against such decrees :  

Provided that the Appellate Court shall not make any  order under Section 35A, in pursuance of any objection  on which the Court from whose decree the appeal is  preferred has omitted or refused to make such order."  

Tliis provision is based on a salutary principle that the appellate court  should have the power to do complete justice between the parties. The object  of the rule is also to avoid contradictory and inconsistent decisions on the  same questions in the same suits. For this purpose, the rule confers a wide  discretionary power on the appellate court to pass such decree or order as  ought to have been passed or as the nature of the case may require, not- withstanding the fact that the appeal is only with regard to a part of the decree  or that the party in whose favour the power is proposed to be exercised has  not filed any appeal or cross objection. While it is true that since the power  is derogative of the general principle that a party cannot avoid the effect of a  decree against him without filing an appeal or cross-objection and, therefore,  the power has to be exercised with care and caution, it is also true that in an  appropriate case, the appellate court should not hesitate to exercise the  discretion conferred by the said rule.  

8. The present is one such case where according to us, the High Court  ought to have used the discretionary power conferred by the rule. The facts  which have been sufficiently detailed above, show Chae a customary right by a  section of the public was sought to be asserted against the entire suit property  in which rights and interests of all the defendants were involved. The said  right could not be exercised partially in respect of only a particular piece of  land. The plaintiffs had gone to the Court asking customary right in respect  of the entire suit property and had not specified any particular portion ofche  

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CHAYA v. BAPUSAHEB (SAWANT, J.] 295  

property as the object of the exercise of the said right. Apart from the fact A  ~- that R.S. Nos. 975/1 and 975/2 were originally the joint family property of all  

the defendant-brothers, whatever the inter se relation between them with  respect to the said property, various portions of both the survey numbers  were sold to the vendee-defendants. The plaintiffs had not made clear as to  which of the remaining portions of the suit land were the subject-matter of B  their customary right. Admittedly, on the sold lands, vendee-defendants had  constructed houses. The Trial Court while granting the decree, had excluded  

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-~  portions of the land which were occupied by the residential houses. The Trial  Court, had further, not granted decree in respect of specific portions of the  suit property against specific defendants. It had granted the decree generally  against the entire land minus that occupied by the houses, and against all the c  

- defendants together. Defendant 1 had preferred an appeal before the Dis-trict Court challenging the decree granted by the Trial Court against the  entire land viz., that belonging to himself and to all the other defendants. It  is that appeal which was decided on merits by the appellate court not-

~  withstanding the death of defendant 2 during the pendency of the appeal.  Thus, granting decree in favour of defendant i alone when it was not claimed  

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by the plaintiff in the original suit, and based upon a common right asserted  against the entire land which was the relief claimed by the plaintiffs, would in  the present case result in contradictory findings viz., that whereas the cus- tomary right could not be claimed against any portion of the suit property  

E (that is the finding of the High Court), the Trial Court's decree for exercise  J>-- of such rights would continue to operate against a part of the land merely  

because the other defendants had not preferred any appeal.  

9. We find that in the circumstances, this was a fit case where the  High Court ought to have exercised its power under Order 41, Rule 34. In  

F fact, the non-exercise of the power has resulted not only in the miscarriage  of justice but in contradictory results in respect of the same subject matter  

' and based on the same alleged right. In this connection, we may refer to -- decisions of this Court in Mahabir Prasad v. !age Ram and Others, (1971]  1 SCC 265; Harihar Prasad Singh v. Balmiki Prasad Singh, (1975] 1 SCC  212; Giani Ram v. Ramji Lal, (1969] 3 SCR 944 and Koksingh v. Smc. G  Deokaba~ (1976] 1 SCC 383 to support our conclusion.  

We, therefore, allow the appeal, modify the decision of the High  

t Court and dismiss the plaintifrs suit in respect of the entire property. In the circumstances of the case, there will be no order as to costs. S.L.S. Appeal allowed.