( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 290 OF 1990 Ram s/o Bhagwan Gir Since deceased, through L.Rs. A-1) Smt. Serubai w/o Ram Gir A-2) Nagnath s/o Ram Gir, R/o Songiri, Tq. Bhoom, Dist. Osmanabad. A-3) Smt. Urmila w/o Laxman Gir, R/o as above. A-i) Mahadeo s/o Laxman Gir, R/o as above. A-ii) Samadhan s/o Laxman Gir A-iii)Ashok s/o Laxman Gir A-iv) Miss Mandu d/o Laxman Gir All appellants No. (ii) to (iv) being minors are under guardianship of their mother Urmila w/o Laxman Gir. A-4) Smt. Rahibai w/o Gokul Bharati, R/o Sukta, Tq. Bhoom, District Osmanabad. APPELLANTS VERSUS 1. Ishwarbuva s/o Govindbuva Gir, R/o Songiri, Tq. Bhoom, District Osmanabad. 2. Ghinibuva s/o Govindbuva Gir, R/o as above. 3. Nambuva s/o Govindbuva Gir Since deceased by his L.Rs. 3a) Gangubai w/o Nambuva Gir, R/o Songiri, Tq. Bhoom, District Osmanabad. ( 2 ) 3b) Digambar s/o Nambuva Gir Since deceased by his L.Rs. (i) Smt. Sakhubai w/o Digambar Gir R/o Songiri, Tq. Bhoom, District Osmanabad. (ii) Anna s/o Digambar Gir (iii)Suresh s/o Digambar Gir L.Rs. 3B (ii) to (iii) being minors under guardianship of their mother Smt. Sakhubai w/o Digambar Gir. 3c) Baidabai w/o Bhika Gir, R/o Kallam, Tq. Kallam, District Osmanabad. 3d) Kamal w/o Pandurang Bharti, R/o Songiri, Tq. Bhoom, District Osmanabad. 3e) Anusaya w/o Baban Gir, R/o Pargaon, Tq. Bhoom, District Osmanabad. 4. Dambuva s/o Govindbuva Gir, R/o Songiri, Tq. Bhoom, District Osmanabad. 5. Godavari w/o Haribhau Gir, (Since deceased, her L.R. Respondent No. 6) 6. Dattu s/o Haribhau Gir, R/o Songiri, Tq. Bhoom, District Osmanabad. 7. Vasant s/o Ganpat Gir (Since deceased, by L.Rs.) 7a) Prayagibai Ganpat Gir, R/o Songiri, Tq. Bhoom, District Osmanabad. 7b) Mandodhari w/o Vasant Gir, R/o Songiri, Tq. Bhoom, District Osmanabad. 7c) Giraji d/o Vasant Gir, being minor, under guardianship of her mother Mandodhari w/o Vasant Gir. 8. Venkatbuva s/o Govindbuva Gir, R/o Songiri, Tq. Bhoom. ( 3 ) 9. Sainabuva s/o Govindbuva Gir, r/O Pimpri, Tq. Ambajogai, District Beed. 10. Kishanabai w/o Hanmant Gir, R/o Barloni, Tq. Madha, District Solapur. 11. Krishnabuva s/o Bhagwan Gir, R/o Songiri, Tq. Bhoom, District Osmanabad. 12. Shivbuva s/o Bhagwan Gir, R/o as above. RESPONDENTS [Appeal abated as against respondent No. 7 (a) vide Registrar’s order dated 10-04-1991]. [Appeal is dismissed as against the respondents No. 3-b (i), (ii) and (iv) as per Registrar’s order dated 13-08-2008). ..... Mr. S.K. Shelke, advocate for the appellants. Mr. S.B. Talekar, advocate for respondents No. 1, 2, 4, 6, 7 (b), 7 (c), 8, 9, 10, 11 and 12. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 15th June, 2009] ORAL JUDGEMENT : 1. This second appeal arises out of order whereby the first Appellate Court dismissed the appeal (R.C.A. No. 168/1983) as abated in entirety. The deceased ( 4 ) defendants No. 1 to 3 were the appellants before the first Appellate Court. They challenged decree rendered in civil Suit (R.C.S. No. 63/1977). 2. The learned Civil Judge (J.D.), Bhoom decree the suit bearing R.C.S. No. 63/1977 whereby and whereunder original plaintiffs were declared to be co- owners alongwith the original defendants No. 5 to 10 in respect of the suit property. The original defendants No. 1 to 3 were restrained by way of perpetual injunction from disturbing the possession of the said plaintiffs and the defendants No. 5 to 10. Feeling aggrieved, the original defendants No. 1 to 3 preferred appeal (R.C.A. No. 168/1983). During pendency of the said appeal, original plaintiff No.3 who was respondent No. 3 in the appeal, viz. Nambuva Govindbuva, died on 23rd July, 1989. His advocate informed about death of said Nambuva by filing a purshis. It was prayed that the appeal had abated against deceased Nambuva and, therefore, it was necessary to dismiss the entire appeal. The first Appellate Court accepted the contention of the learned advocate for the deceased ( 5 ) respondent No.4/original plaintiff No. 3. The first Appellate Court held that the appeal abates for want of substitution of the legal representatives. The appeal was, therefore, dismissed as abated. 3. Heard learned counsel. 4. Before I proceed to consider relevant contentions, it is worthwhile to note that when this second appeal was admitted, no substantial question of law was formulated. The then Hon’ble Judge (Dani, J.) passed following order : “Admit. Paper book dispensed with. Advocate dispenses the notice. Fix for final hearing in the week commencing 8th July, 1991.” The second appeal cannot be heard unless there is substantial question of law involved and formulated. Sub-section (5) of section 100 of the Civil Procedure Code does not permit of framing of substantial question of law unless already there is such a substantial question of law formulated at the time of admission of ( 6 ) the second appeal. Thus, technically speaking, the second appeal is not maintainable for want of any substantial question of law. 5. I shall proceed, however, on the footing that substantial question of law involved in this second appeal is as to whether the appeal could be held as abated in its entirety. For, I deem it proper to assume that such substantial question of law is raised and in order to avoid any further delay in dealing with the second appeal, it would be appropriate to consider such substantial question of law. 6. At this juncture, let it be noted that the suit was filed by three (3) sons of deceased Govindbuva Gir, namely, Ishwarbuva, Gahinibuva and Nambuva. The learned Civil Judge decreed the suit (R.C.S. No. 63/1977) holding that they and the original defendants No. 5 to 10 were the joint owners of the suit lands. Consequently, relief of injunction was also granted in their favour. The nature of decree shows that the deceased plaintiff No. 3 Nambuva and others were ( 7 ) regarded as joint owners of the suit property. The declaration of ownership is indivisible and not of individual character. Obviously, the decree is indivisible. No separate right of deceased plaintiff No. 3 Nambuva was determined under the said decree. Once it is found that the decree is indivisible death of one of the plaintiffs would cause abatement of the entire appeal because claim of such deceased plaintiff cannot be segregated. 7. The perusal of the record and proceedings would go to show that intimation was given by the learned advocate for the deceased plaintiff No. 3 (Nambuva – respondent No. 4 in the appeal) vide Exhibit-17. The advocate informed the Court that said Nambuva died on 23rd July, 1989 and, therefore, the appeal stood abated against him. He also made it clear that the decree was joint for declaration of ownership and injunction. On this purshis (Exh-17), learned advocate for the appellants gave no objection. However, on next date, another purshis was given by the learned advocate for the appellants that he wanted to file separate ( 8 ) application for delay condonation and substitution of the legal representatives of the deceased respondent No. 4/original plaintiff No. 3, vide Exh-19. He lateron gave purshis (Exh-21) on 26th March, 1990 for withdrawal of the suit. The first Appellate Court held that when the appeal had abated, there was no question of withdrawal of the same. 8. Mr. Shelke would submit that the no objection was given due to some misunderstanding of the concerned advocate of the appellants. He would submit that subsequent purshis dated 14th March,1990 shows that there was no intention to give no objection for abatement of the appeal. There may be some misunderstanding regarding the no objection given by the learned advocate of the appellants before the first Appellate Court. The fact remains, however, that due to death of the respondent No. 4 – Nambuva, the appeal had abated. No efforts were made to bring the legal representatives of deceased respondent No. 4 – Nambuva on record. On the other hand, withdrawal purshis was given vide Exh-21. In other words, the appellant did not want to proceed with ( 9 ) the appeal. 9. There cannot be duality of opinion that the appeal could have been held as abated only against the deceased respondent No. 4 – Nambuva if his interest could be regarded as separable. In the present case, the decree was indivisible. The interest of deceased Nambuva could not be separately identified. The abatement may not take place if the case is covered by Order-XXII Rule-1 or Rule-2 of the Civil Procedure Code. The question of abatement depends upon existence of right to sue. In case of indivisible decree, the right to sue would not be available even though the death is of one of the decree-holders. In this view of the matter, the first Appellate Court was right while dismissing the entire appeal due to non-substitution of the legal representatives of deceased respondent No. 4 – Nambuva. That apart, the appellants could not be permitted to blow hot and cold once their advocate had given concession for abatement of the appeal. It is not open for them to now withdraw such concession. Moreover, the withdrawal of the appeal is not said to be outcome of ( 10 ) any misunderstanding. Under these circumstances, there is hardly any merit in the second appeal. 10. In the result, the second appeal is dismissed. No costs. [ V.R. KINGAONKAR ] JUDGE NPJ/sa290-90