http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

CASE NO.: Appeal (civil)  5507 of 1999

PETITIONER: Shahazada Bi & Ors.

RESPONDENT: Halimabi (since dead) by her LRs.

DATE OF JUDGMENT: 30/07/2004

BENCH: S.B. SINHA & S.H. KAPADIA.

JUDGMENT: J U D G M E N T

KAPADIA, J.

       This appeal by special leave is filed by the  defendants against the judgment and order of the  Karnataka High Court dated 31st August, 1998 passed in  R.S.A. No.76 of 1996 whereby the High Court allowed  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-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 \026 whether the suit for possession filed  by the respondents-plaintiffs stood 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:\027         Plaintiffs are the wife and children of Essanullah.   They inter alia filed suit no.417 of 1979 in the court of  Additional Munsiff at Kolar Gold 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 plaintiff’s right to recover possession  of the seven rooms.  According to the plaintiffs, the  property (schedule ’A’) was a self acquired property of  Essanullah who died on 8.1.1970, whereas according to  the defendants herein the said property belonged to all  the heirs of Moosa Saheb, the father of Essanullah, K.M.  Ziauddin (defendant no.3) and K.M. Obeidulla  (defendant no.4).  In 1973, after the demise of  Essanullah, defendant no.1 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 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

property in schedule ’A’ including the seven rooms was  self acquired property of Essanullah.  The decree passed  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.  

       In the present suit, defendants no.1 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 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 & Company.  In  the written statement, it was pleaded that the suit  property was bought out of the income earned by M/s  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 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 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 Essanullah were  entitled to 2/15th 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 of 2/15th share along with other heirs of Moosa  Saheb.

       On above pleadings, the trial Court framed certain  issues.  Two main issues framed by the trial court were  \027 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 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 \027 whether the High Court was right in  coming to the conclusion that the suit against defendant  no.4 alone abated and that the entire suit did not abate?  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

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  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 present case for recovery of seven rooms  more particularly described in schedule ’B’ to the plaint.   At this stage, it may be stated that the decree of the trial  Court for possession of seven rooms is based on the map  (Ex.P8) 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 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 the heirs of defendant no.4, the entire suit did  not abate.  The trial Court, therefore, decreed the suit  against defendants no.1 to 3 and dismissed the suit  against defendant no.4.  

       Being aggrieved by the decree passed by the trial  Court, defendants no.1 to 3 preferred an appeal to the  Civil Judge at Kolar Gold Fields being R.A. No.13 of  1991.  It was held in appeal that the plaintiffs had sought  for a decree jointly against defendants no.1 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.1 to 4 were in  possession of 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 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.1 to 3.  In this connection, the  lower appellate Court further observed that the plaintiffs  were not entitled to recover possession of the seven  rooms from defendants no.1 to 3 alone as there was no  evidence adduced by the plaintiffs as to the  portion/rooms in possession of defendants no.1 to 3.   That except for Ex.P8 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.1, 2 and 3.  That  the relief sought for against the defendants was joint and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

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, 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 appeal under section 100  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:\027 "Whether the dismissal by the first appellate  Court on the ground that the LRs of  defendant no.4 were not brought on record  was 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 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 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.

       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 description of the suit property.  Each of  the seven rooms has been marked on the sketch tendered  in evidence as B1 to B7.  In the plaint, the original  plaintiffs separately mentioned the rooms in possession  of each of the defendants vide paragraph no.5.  They  gave a separate schedule to the plaint, which described  the rooms in possession of 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 (Ex.P8)  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

adverse title.  The most 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.1 to 3.  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 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:  Masilamani Nadar v. Kuttiamma & Ors. reported in  1960 (4) Kerala Law Journal 936].  In the case Sant  Singh & Anr. v. Gulab 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 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 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.  It  was further held in the said 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 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 Kalra (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 of a  joint right as distinguished from tenancy-in-common  alone is not the criteria but the joint character of the  decree de hors relationship of the parties inter-se and the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

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 continuation and culmination in  an effective adjudication.  It was further observed that the  mere fact that 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 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 whether the  decree passed in the proceedings vis-‘-vis the remaining  parties would suffer the vice of inconsistent decrees or  conflicting decrees.  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 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.P8 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.P8 in evidence.  Nor was  there 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.  However, in the  facts and circumstances of the case, there shall be no  order as to costs.