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PETITIONER: SHASHIBUSHAN PRASAD MISILRA & ANR.

       Vs.

RESPONDENT: BABUJI RAI & ORS.

DATE OF JUDGMENT: 27/11/1968

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. SIKRI, S.M. HEGDE, K.S.

CITATION:  1970 AIR  809            1969 SCR  (2) 971

ACT: Practice  and  Procedure-Appeal dismissed by High  Court  as against  a  respondent who is not   necessary   party-Appeal whether   abates as against other  respondents-Res  judicata between co-defendants.

HEADNOTE: The  plaintiffs (appellants herein) obtained settlements  of certain land owned by a deity in village Siripur Majrahia in Bihar.  The contesting defendants (respondents herein) owned lands  in  the villages of Kazi Dumra and  Shankarpur  which were  separated  from  Siripur  Majrahia  by  a  river.  The plaintiffs  claimed  that in consequence of the  changes  in the  channel of the aforesaid river the lands in  suit  were lost  to villages Kazi Dumra and Shankarpur by diluvion  and were  annexed to their land in village Siripur  Majrahia  by gradual  increment and accretion.  The deity was  also  made defendant No. 18 in the suit although no relief was  claimed against  it.   The trial court dismissed the  suit  and  the plaintiffs  appealed  to High Court,  again  impleading  the deity  as a   respondent.  They, however, failed to  deposit the cost of the guardian ad litem of the deity appointed  by the High Court and the Court thereupon dismissed the  appeal as  against the deity.  The  contesting defendants urged  at the hearing that the entire appeal had become incompetent in view  of  the  dismissal of the appeal  against  the  deity. Accepting  the  contention  the  High  Court  dismissed  the appeal.   It  held inter alia, that the  appeal  had  abated against  the  deity.   The  plaintiffs  filed  appeal,  with certificate,  in this Court.  On behalf of  the  respondents reliance  was placed on Muni Bibi v. Trilokinath and it  was urged  that the decision of the trial court on the  question whether  the  suit  lands  appertained  to  village  Siripur Majrahia operated as res judicata between the deity and  the contesting   co-defendants,  that the appellate court  could not  record  an  inconsistent finding that  the  suit  lands appertained.  to  village Siripur Majrahia and that  in  the circumstances,  the entire appeal before the High Court  had become incompetent.     HELD:  (i) The High Court was in error in  holding  that the appeal had abated either wholly or in part.  None of the

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parties to the appeal had died and there was no question  of abatement of the appeal. [973 E]     (ii)  The deity was not a necessary party to the  appeal and the plaintiffs were entitled to prosecute: their  appeal against  the  contesting defendants in the  absence  of  the deity. [973 G--H; 974 A--B]     (iii) The case of Muni Bibi v. Trilokinath shows that  a decision  operates as res judicata between co-defendants  if (1) there is a conflict of interest between them; (2) it  is necessary  to  decide  that conflict in order  to  give  the plaintiffs the reliefs which they claim and (3) the question between  the  co-defendants  is  finally  decided.   In  the present  case  the third condition was not  satisfied.   The question   whether  the suit  lands appertained  to  Siripur Majrahia  was not finally decided between the deity and  the co-defendants.    On  the  filing  of  the  appeal  by   the plaintiffs,  the  question became once more the  subject  of judicial  enquiry  between  the  deity  and  the  contesting defendants. [974 B--D] Muni Bibi v. Trilokinath, L.R. 58 I.A. 158, referred to. 972     (iv) Before the appeal was finally heard and decided, it was  dismissed as against the deity for non-payment  of  its guardian’s  costs.   The appellate court did  not  give  any decision  on the merits of the case in the presence  of  the deity.  There was no final decision against the deity on the question  of title to the suit lands.  The decision  of  the appellate court against the contesting defendants would  not lead  to  conflicting and inconsistant  decrees.   The  High Court  was in error in holding that the appeal  against  the contesting defendants became incompetent. [974 D--E]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1110 of 1965.    Appeal from the judgment and decree dated July 6, 1959 of the Patna High Court in First Appeal No. 235 of 1951. Sarjoo Prasad and B.P. Jha, for the appellants. C.B.  Agarwala,  P.K. Chatterjee and R.B. Datar,   for   the respondents (in Excepting respondents Nos. 15(b) to 15(d). The Judgment of the Court was delivered by     Bachawat,  J.  This appeal arises out of Title Suit  No. 12/9 of 1946 instituted in the Court of the First Additional Subordinate   Judge,  Darbhanga.   The  plaintiffs   claimed declaration  of their title and possession in respect of  70 bighas of land in plot No. 1083 in village Siripur Majrahia. They obtained settlements  of  the lands from the deity Shri Radhakrishan  Jee  Baldeojee.  The deity was  the  16  annas proprietor  of village Siripur Majrahia Pergana  Jankhalpur, Tauzi  No. 2794. The river Karey flows between this  village and  the  villages  of  Kazi  Dumra  and  Shankarpur.    The contesting  defendants  were the landlords  and  tenants  of villages Kazi Dumra and Shankarpur.  The deity was defendant No.  18 and was represented ’by one Tantreshwar Singh.   The plaintiffs claimed that in consequence of the changes in the channel  of the river Karey the lands in suit were  lost  to villages  Kazi  Dumra and Shankarpur by  diluvion  and  were annexed  to  plot No. 1083 in village  Siripur  Majrahia  by gradual increment and accretioan. The trial Court  dismissed the suit. It held that  (1)  the suit lands did not  accrete to plots Nos. 1083 and 1089 in village Sirlput Majrahia  due to slow, gradual and imperceptible changes in the channel of the  river Karey, (2) there was no custom in the village  by which the disputed lands became the property of the owner of

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those  plots, (3) the deity Radha Krishanji Baldeoji or  the owner of village Siripur Majrahia did not obtain  possession of  the lands in the manner ,alleged in the plaint, (4)  the lands  originally  belonged to the proprietors  of  villages Kazi  Dumra   and  Shankarpur  and  continued  to  be  their property and (5 ) the plaintiffs failed to prove their title and possession in respect of the suit lands within 12  years before  the  date  of  the  institution  of  the  suit.  The plaintiffs  filed F.A. No. 291 of 1951 in the High Court  of Patna  against  the decree passed by the Trial  Court.   The deity Shri Radha Krishanji Baldeoji, the original  defendant No. 18 was 973 impleaded  as respondent No. 23 in the appeal. By  an  order dated  January 24, 1952 the High Court appointed the  Deputy Registrar  as  the  guardian  of  the  deity.   On  February 18,.1952 the High Court passed the following order :-                   "Two  week’s  further time is  allowed  to               deposit  D.R. guardian’s cost  for  respondent               No. 23 (deity) failing which this appeal shall               stand  dismissed against him  without  further               reference to a Bench." This  peremptory  order  was not complied with  and  on  the expiry of the two weeks the appeal stood dismissed  ’against the  deity.  At  the hearing of the  appeal  the  contesting defendants  urged that the entire appeal became  incompetent in  view of the dismissal of the appeal against  the  deity. The  High Court accepted this contention and  dismissed  the appeal in its entirety.  The High Court held that there  was a  clear issue between defendant No. 18 and  the  contesting defendants  as  to  whether the lands  formed  part  of  the village  Siripur  Majrahia, that the issue  stood  concluded against  defendant No. 18 by the decree of the Trial  Court, that the appeal had abated against defendant No. 18 and that as  success  in  the appeal might lead  to  conflicting  and inconsistent    decrees,    the  appeal  against   all   the defendants became incompetent.  The present ’appeal has been filed by the plaintiffs  after obtaining  a certificate from the High Court.     Clearly, the High Court was in error in holding that the appeal  had  abated either wholly or in part.  None  of  the parties to the appeal had died and there was no question  of the  abatement of the appeal.  Mr. C.B. Agarwala relying  on the case of Munni Bibi v. Trilokinath(1) submitted that  the decision  of  the  Trial Court on the question  whether  the suit lands appertained to village Siripur Majrahia  operated as  res  judicata between the deity and the  contesting  co- defendants,  that  the appellate court could not  record  an inconsistent  finding  that the suit  lands  appertained  to village Siripur Majrahia, and that in the circumstances, the entire appeal before the High Court became incompetent.   We are unable to accept these contentions.     The  plaintiffs claiming as  tenants of the  deity  sued the contesting defendants for declaration of their title and possession  in respect of the suit lands on  the  allegation that  the lands appertained to village Siripur  Majrahia  of which  the  deity was the proprietor.  The deity was  not  a necessary party to the suit.  It was joined as a  defendant, but no relief was claimed against it. The suit was dismissed on  a  finding that the suit lands did  not  appertained  to village  Siripur Majrahi’a.  The plaintiffs filed an  appeal against  the  decree  impleading the deity  as  one  of  the respondents.  The appeal was dismissed against the deity for non(1) L.R. 58 I.A. 158. 974

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payment  of costs of its guardian ad litem.  The  deity  was not  a necessary party to the appeal.   The plaintiffs  were entitled  to prosecute their appeal against  the  contesting defendants in the absence of the deity.     As soon as the appeal was filed by the plaintiffs in the High  Court  the  decision  of  the  Trial  Court  lost  its character  of  finality and the question  whether  the  suit lands appertained  to  village Siripur Majrahia became  once again   res   sub  judice.  The  case  of  Munni   Bibi   v. Trilokinath(1)  shows  that  a  decision   operates  as  res ludicata between co-defendants if (1) there is a conflict of interest  between them; (2) it is necessary to  decide  that conflict  in order to give the plaintiffs the reliefs  which they  claim and (3 ) the question between the  co-defendants is  finally  decided.   In  the  present  case,  the   third condition was not satisfied.  The question whether the  suit lands appertain to Siripur Majrahia was not finally  decided between  the deity and the co-defendants.  On the filing  of the appeal by the plaintiffs, the question became once  more subject  of  judicial  inquiry between  the  deity  and  the contesting defendants.  Before the ’appeal was finally heard and  decided, it was dismissed as against the deity for non- payment  of its guardian’s costs.  The appellate  court  did not  give  any  decision on the merits of the  case  in  the presence  of the deity.  There is no final decision  against the  deity on the question of the title to the  suit  lands. The decision of the ’appellate court against the  contesting defendants  will  not lead to conflicting  and  inconsistent decrees.  The  High Court was in error in holding  that  the appeal against the contesting defendants became incompetent. In  the circumstances the High Court ought to  have  decided the appeal before it on the merits.  Counsel for the parties agreed that the decision of the present appeal on the merits would abide by the decision in C.A. No. 140 of 1966  arising out of T.S. No. 29/11 of 1946.  That suit and T.S. No.  12/9 of  1946 out of which the present appeal arises  were  heard together  by  the Trial Court and disposed of  by  a  common judgment.  In  C.A. No. 140 of 1966 we have  held  that  the disputed lands appertained originally to village Kazi  Dumra and Shankarpur, that due to the recession of the river Karey the  lands  reformed in situ and that the  property  in  the lands continued to remain with the proprietors of the  lands in  villages  Kazi  Dumra and  Shankarpur.   The  plaintiffs failed to prove that the deity Shri Radha Krishnaji Baldeoji came into possession of the disputed land as alleged in  the plaint.    There  was no issue on the question  whether  the deity  had  acquired  title to the  suit  lands  by  adverse possession.   The  plea of acquisition of title  by  adverse possession  cannot  be  raised for the  first  time  at  the appellate   stage.   The  plaintiffs  failed  to   establish acquisition of title of the deity to any portion cf the suit lands by adverse (1) L.R. 58 I.A. 158. 975 possession.  It follows that there was no merit in F.A.  No. 235  of 1951.  Although the High Court did not  decide  this appeal  on  the merits, it is not necessary  to  remand  the matter  to the High Court. Having regard to our findings  in C.A.  No.  140 of 1966, T.S. No. 12/9 of 1946 also  must  be dismissed. In  the result, the appeal is dismissed.  There will  be  no order to costs. Y.P.                                     Appeal dismissed. L6S5up. C1/69-11

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