1 IN THE HIGH COURT OF BOMBAY AT GOA, PANAJI. SECOND APPEAL NO. 56 OF 2000. 1. Mr. Porbuko Uma Mandrekar, 2. Mr. Nyaheshwar Uma Mandrekar, 3. Mr. Chandra Uma Mandrekar, all major of age, all residents of House No. 7, Tintowaddo, Reis Magos, Nerul, Bardez, Goa. .............Appellants/Defendants. versus 1. Mr. Wencesslay Alex D'Silva, Major, married, landlord, resident of Fortavaddo, Nerul, Bardez, Goa. 2. Mr. Prashant Gokuldas Mandrekar, 3. Mrs. Lalan Gokuldas Mandrekar. ............ Respondents. Shri S. D. Lotlikar, Senior Advocate with Ms. Kamaxi Sambari, Advocate for the Appellants. Shri A. F. Diniz, Advocate for the Respondent No. 1. Appeal stands dismissed as against Respondents No. 2 & 3 as per the order of this Court dated 13.11.03. CORAM : N. A. BRITTO, J. DATE : 29th October, 2004 & 4th November, 2004. 2 ORAL JUDGMENT (PER BRITTO, J.) : 1. This is a defendants' Second Appeal, arising from Regular Civil Suit No. 203/88. 2. The parties hereto shall be referred to in the names as they appear in the cause title of the said Civil Suit. 3. By order of this Court dated 19.01.01, this Second Appeal was admitted on two substantial questions of law which read as follows : Where in view of the specific plea raised by the appellants (defendants), to the effect that they were tenants / deemed purchasers of the suit property, by virtue of the provisions of the Agricultural Tenancy Act, 1964, the Courts below could have proceeded with the suit and recorded a finding on the issue of tenancy? Whether in view of the specific plea raised by the appellants (defendants), that they were tenants / deemed purchasers under the Agricultural Tenancy Act, 1964, in respect of the suit property, it was obligatory on the Courts below, to have stayed the suit and directed the appellants to obtain a declaration tenancy rights in respect of the suit property? 4. To get a hang of the controversy, it may be stated, that the plaintiff had filed the said Civil Suit, inter alia, to declare that the construction of three huts, namely, “H-1”, “H-2” and “H-3” and the extension to existing structures namely extension “E-1” and “E-2” done by the defendants were illegal and the defendants be directed to 3 demolish the same and restore the suit property to its original condition. The plaintiff had also prayed for a declaration that the re- construction of “Tulas” on the boundary line of the suit property was illegal and a decree be passed directing the defendants to remove the Tulas from the boundary line and re-construct the same if the defendants so required so as to keep a gap of 1.80 meters between the Tulas and boundary line and also for a declaration that the defendants had no right to construct the barbed wire fencing and the defendants be directed to demolish the barbed wire fencing forthwith and restore the property to its original condition. 5. The property known as “Santerichem Bhat” and surveyed under No. 2/1, admeasuring 6350 sq.mts. belonged to Blanche Bertha Amariles Francisco e Mendonca and her husband Shri Jovito Joao Mendonca. The same was divided into three plots and one plot admeasuring 2718 sq.mts., was purchased by the plaintiff by Deed of Sale dated 6.9.1972. In this portion there was a house of one Uma Bablo Mandrekar, the deceased father of the defendants, who was declared as Mundkar. It was the case of the plaintiff that as mundkar, the said Uma Bablo Mandrekar was entitled to purchase 5 meters all around his house or 300 sq.mts. which ever is more to be fixed by the Mamlatdar and besides there were two structures at the back and at the side of the said house of the defendant and in front of the house there was the said Tulas exactly at a distance of 1.80 mts. from the eastern boundary line of the suit property of the plaintiff. 4 6. The plaintiff claimed that in the year 1984, the said Uma Bablo Mandrekar demolished the existing Tulas and re-constructed the same towards the boundary line thereby occupying a space of 1.80 mts. as a result of which no space was left between the boundary line and the said Tulas as it existed originally and the said Tulas was constructed without obtaining proper licence and it also blocked the plaintiff's access to the remaining portion of his property from the main public road and that in the same year, the said Uma Bablo Mandrekar put a fence of bamboos and barbed wires which closed the plaintiff's access to the other portion of his property and then the said Uma Bablo Mandrekar started stacking hay or dry grass in the property of the plaintiff thereby encroaching nearly 200 sq.mts. of his property. The plaintiff stated that on the death of Uma Bablo Mandrekar, the defendants became entitled to all the rights and claims of the said Uma Bablo Mandrekar but without any rhyme or reason again adopted hostile attitude towards the plaintiff and started harassing the plaintiff in different ways and in the year 1987 the defendants constructed three huts at a distance of about 5 meters from the outer border line of the defendants house without consent of the plaintiff and licence of the Panchayat and in January, 1987, the defendants demolished and re-constructed the said Tulas at the boundary line thereby keeping no space of 1.80 mts. between the boundary line and the original Tulas as it existed then and at this time the defendants also encroached upon more land on the western and northern side of his house and thereby extended the existing 5 structure by 4.5 mts. x 2.5 mts. at the back of the house on the western side and by 8.25 mts. x 2.40 mts. extended the existing struture on the northern side of the house without the consent of the plaintiff. 7. The plaintiff, therefore claimed that the defendants had no right, title or interest to do the extensions which they showed on the plan as E-1 & E-2 and the three huts which they identified as H-1, H-2 and H-3 and therefore filed the suit for reliefs as stated herein above. 8. The defendants contested the suit and, inter alia, stated that : “The Court had no jurisdiction to try the suit in respect of the suit property protected under the Goa Daman and Diu Agricultural Tenancy Act, 1964 ( the Act, for short ) and more particularly by virtue of the 5th Amendment of the Act”. The defendants also stated that the prayers of the plaintiff were time barred. The defendants also stated that the Court had no jurisdiction because their father was already registered as Mundkar in respect of the main house and the alleged encroachments are falling within the Mundkar rights of the defendant and / or they were entitled to the same as easementary rights and therefore the reliefs claimed by the plaintiff were not available to him in view of the relevant provisions of the Goa Daman and Diu Mundkars (Protection from Eviction) Act, 1975. 6 9. The defendant also pleaded that the suit property including other two properties were leased to their father, the said Uma Bablo Naik by late Manuel Francisco, the father of the said Blanche and father-in-law of the said Jovito Mendonca who sold the suit property to the plaintiff. The defendants stated that the lease was granted in favour of Uma Bablo Naik by agreement dated 28.11.51, along with two other properties situated at Nerul and that even after the lease was granted, the said Manuel Francisco even agreed to sell part of the suit property to the deceased Uma Bablo Naik and even executed a writing to that effect on 19.10.53. The defendants stated that the said lease agreement dated 28.11.51 or agreement for sale dated 19.10.53 have not been terminated and the said writings continue to be valid. The defendants also stated that the said property was divided upon the death of the said Manuel Francisco without the consent and permission of the deceased Uma or the defendants or the other heirs of the deceased Uma and sold in three plots to three different purchasers. The defendants stated that they were in possession and enjoyment of the suit property even to the exclusion of the plaintiff and his wife who were the owners of the same. The defendants stated that there are not many trees in the said property and the trees are scarcely spread in the same. The defendants stated that they were in enjoyment and possession of the suit property and have become deemed owners of the same by virtue of the 5th Amendment of the Goa Daman and Diu Agricultural Act, 1964 and besides the said Uma was registered as Mundkar in the suit property 7 and as such he has also acquired rights appurtenant thereto. The defendants also stated that they have acquired permanent rights in relation to the entire property by virtue of the Act and the Mundkar's Act, 1975. 10. The Learned Trial Court frames several issues including isuue No. 4 which reads as follows : “ Whether the defendants proved that this Court had no jurisdiction in view of the Agricultural Tenancy Act, or in view of the Mundkar Act”. The Learned Trial Court proceeded to answer the said issue in the negative and in answering the said issue the Learned Trial Court came to the conclusion that the defendants had not obtained any declaration to prove their tenancy rights and that the survey records also did not show that the defendants were cultivating or enjoying the suit property as tenants. The Learned Trial Court further opined that considering these factors, the defendants had failed to prove that they were tenants in respect of the suit property and as such there was no bar of jurisdiction. 11. The Learned First Appellate Court observed that “ the mere fact that the appellants took the stand that they were the tenants of the suit property, the issue is (not?) necessarily to be referred to the Mamlatdar.” The Learned First Appellate Court further observed that “ the records prima facie to show that the appellants are the tenants” 8 and that neither the lease agreement executed in 1951 nor the survey records showed that the appellants (defendants) were the tenants of the suit property and moreover the suit was for demolishing of the illegal structures and the encroachment and the appellants failed to prove that they were in possession and enjoyment of the suit property.” The Learned First Appellate Court therefore confirmed the findings on issue No. 4 given by the Learned Trial Court. 12. Upon the death of defendant No. 1, his son and daughter-in-law were brought on record. The First Appeal was filed by all the defendants. 13. This Second Appeal was filed by the defendants No. 2, 3 & 4 and the son and daughter-in-law of the deceased defendant No. 1 Gokuldas Uma Mandrekar were joined as respondents No. 2 & 3. The appellants / defendants No. 2, 3 & 4 took considerable time to effect service on the said son and daughter-in-law of Gokuldas Uma Mandrekar namely respondents No. 2 & 3 herein as a result of which on 17.02.04 it was ordered by this Court that in case no steps are taken by the appellants / defendants No. 2 to 4, the appeal against them would stand dismissed as per order dated 13.11.03 and consequently the appeal was dismissed on or about 20.02.04 against the said respondents No. 2 & 3. 9 14. In the situation mentioned above, an objection has been taken by Shri Diniz, the Learned Counsel of the plaintiff by submitting that the decree against respondents No. 2 & 3 has attained finality and cannot be set aside in the guise of using the powers under Order 41, Rule 4 of the C.P.C. which would tantamount to reviewing the earlier order of this Court which is otherwise impermissible. Shri Diniz has submitted that the said decree being joint against all the defendants and having attained finality, the entire appeal has got to be rejected as otherwise there will be inconsistent decrees. Shri Diniz has placed reliance on a number of cases to which reference will be made little later. 15. On the other hand, Shri Lotlikar, the Learned Counsel of the defendants/appellants has submitted that the decree can be set aside also against non-appealing defendants who were respondents No. 2 & 3 before this Court. Shri Lotlikar has placed reliance on the provisions of Order 41, Rule 4, and also on several decided cases, which I will refer, next. 16. To consider the objection, only the provisions of Rule 4, Order 41 of the C.P.C. are relevant. We are not at all concerned with the provisions of Rule 4, Order 22 of the C.P.C. which deal with the procedure in case of death of one of several defendants or of sole defendant. 10 17. Rule 4, Order 41 states that : “ Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be.” 18. In the case of Rameshwar Prasad and others v/s Shambehari Lal Jagannath and another (AIR 1963 SC 1901), the Supreme Court stated that : “ The principle behind the provisions of Rule 4 of Order 41, CPC, seems to be that any one of the plaintiffs or defendants, in filing an appeal as contemplated by the rule, represents all the other non-appealing plaintiffs or defendants as he wants the reversal or modification of the decree in favour of them as well, in view of the fact that the original decree proceeded on a ground common to all of them. Where a number of persons have filed an appeal and pending the appeal one of the appellants dies, the surviving appellants cannot be said to have filed the appeal as representing the deceased appellant.” The Supreme Court also stated that : “ The provisions of Order 41, Rule 4 do not over-ride the provisions of Order 22, Rule 9, CPC. Such a question cannot arise. The two deal with different stages of the appeal and provide for different contingencies. Rule 4 of Order 41 applies to the stage when an appeal is filed and empowers one of the plaintiffs or defendants to file an appeal against 11 the entire decree in certain circumstances. He can take advantage of this provision, but he may not. Once an appeal has been filed by all the appellants, the provisions of Order 41, Rule 4 became unavailable. Order 22 operates during the pendency of an appeal and not at its institution. If some party dies during the pendency of the appeal, his legal representatives have to be brought on the record within the period of limitation. If that is not done, the appeal by the deceased appellant abates and does not proceed any further. There is thus no inconsistency between the provisions of Rule 9 of Order 22 and those of Rule 4 of Order 41, CPC. They operate at different stages and provide for different contingencies. There is nothing common in their provisions which make the provisions of one interfere in any way with those of the other.” 19. In the case of Sri Chand and others v/s M/s. Jagdish Pershad Kishan Chand and others (AIR 1966 SC 1427), the Supreme Court stated 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 Order 41, Rule 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 and the appeal abates so far as he is concerned.” 20. In the case of Bibijan and others v/s Murlidhar and others, (1995) 1 SCC 187, the appellant No. 1 had died in July 1984 and appellant No. 5 had died in the year 1987 and it was reported that respondent No. 1 died in the year 1983 and substitution was allowed. In this situation, the Supreme Court observed that : 12 “ Admittedly, no steps were taken to bring the legal representatives of appellants 1 and 5 on record. By By operation of Order 22, Rule 4 read with Rule 11 of Civil Procedure Code, when one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. Rule 11 postulates the applicability of this order to appeals. As far as may be the word 'plaintiff' should be held to include an appellant, the word 'defendant' a respondent, and the word 'suit' an appeal. Thus at the appellate stage also the legal representatives of the deceased respective appellants and the respondents should be substituted as the legal representatives of the respective appellants / respondents. Article 120 of the third division of the Schedule to the Limitation Act, 1963 provides 90 days from the date of death as the period of limitation to have the legal representatives of the plaintiff - appellant, defendant- -respondent, as the case may be, to be brought on record. After the expiry of 90 days, the appeal stands abated unless the appeal survives against the surviving appellants. Within 60 days after the expiry of 90 days, under Article 121, the abatement needs to be set aside. Since, admittedly, no applications had been made to bring on record the legal representatives of the deceased appellants 1 and 5 from the respective dates, before the expiry of 90 days, their appeal stood abated. The question is whether the appeal of 13 other appellants also abates. It is the joint and inseverable decree of redemption granted in favour of respondents, which was questioned in the appeal. When that decree of redemption against appellants 1 and 5 had come to stand because of abatement of their appeal, that decree of redemption against appellants 2 to 4 alone cannot be set aside, for in that event decree of redemption made against appellants 1 and 5 questioned in the appeal would stand while the decree against appellants 2 to 4 alone calls to be set aside. Since the decree for redemption being joint and inseverable, the appeal cannot be continued and in this view of the matter, the entire appeal stood abated.” 21. The plaintiff has also relied on a decision of a Division Bench of this Court in the case of Sheela wd/o Vijay Choudhari and others v/s Central Bank of India and others (1999 Bank Journal 274). In that case the suit was filed by the Bank against M/s. Vijay Industry through its proprietor Mr. Vijay W. Choudhari and two guarantors. During the pendency of the suit, the proprietor Mr. Vijay W. Choudhari died and his mother, widow and children were brought on record as defendants No. 2(a) to 2(d) and they filed a joint written statement. The suit was decreed ultimately and the defendants No. 2 (b) to 2(d) filed an appeal and during the pendency of the said appeal, the name of defendant No. 2(a)/respondent No. 2 in the said appeal came to be deleted and the plaintiff bank/respondent No. 1 in the appeal sought for a declaration that the appeal did not survive as it had abated against all the present respondents because of the 14 deletion of the name of respondent No. 2/original defendant No. 2(a). 22. The division bench considered a number of cases, but after relying on the case of Bakshish Singh (dead) by L.Rs. v/s Arjan Singh and others (1996) 8 SCC 323, came to the conclusion that the decree passed by the Trial Court was joint and inseverable / indivisible and the original defendant Nos. 2(a) to 2(d) had come on record as the legal representatives of the original defendant No. 2 on his demise. The Division Bench, further observed that as an effect of deletion of the name of respondent No. 2 from the present appeal, it is true that decree passed by the Trial Court, which is impugned in the present appeal, has become final against deleted respondent, namely defendant No. 2(a) and if the present appeal ultimately comes to be allowed then two different decrees will be in the field. Such a situation is against the law enunciated by the Supreme Court in the case of State of Punjab v/s NathuRam (AIR 1962 SC 89) onwards. The Court further observed that this Court in the above referred unreported cases, had laid down that the appeal is abated if the decree has become final against one of the defendants. The Court further observed that the action of the appellants to delete the name of respondent No. 2 had proved to be fatal to their appeal. As the Decree passed by the Trial Court is joint and indivisible and as the decree has become final against the deleted respondent No. 2 in view of the law laid down by the Supreme Court and more particularly in the case of Shri Bakshish Singh (dead) by L.Rs. v/s Arjan Singh 15 and others (supra), the appeal was abated against all the respondents, and, therefore, it was dismissed as abated. 23. In the case of Mahabir Prasad v/s Jage Ram and others (AIR 1971 SC 742), the Supreme Court referred to the case of Ratan Lal Shah v/s Firm Lalmandas Chhadamma Lal (AIR 1970 SC 108), wherein the plaintiffs had obtained a joint decree against two persons, Ratan Lal and Mohan Singh. Against the decree Ratan Lal had alone appealed to the High Court of Allahabad. Mohan Singh was impleaded as a party-respondent to the appeal and the notice of appeal sent to Mohan Singh was returned unserved, and no steps were taken to serve him with notice of the appeal. The High Court dismissed the appeal holding that there was a joint decree against Ratan Lal and Mohan Singh in a suit founded on a joint cause of action and the decree against Mohan Singh had become final. The appellant could not, on that account claim to be heard in his appeal, if he was heard and his claim was upheld. The High Court had observed that there would be two conflicting decisions between the same parties and in the same suit based on the same cause of action. The Supreme Court set aside the judgment of the High Court observing that even though Mohan Singh was not served with notice of appeal, the appeal filed by Ratan Lal was maintainable, in view of the provisions of Order 41, Rule 4, Code of Civil Procedure. The Court further observed that in Ratan Lal Shah's Case, AIR 1970 SC 108, it had allowed the appeal to be prosecuted, even though one of 16 the joint decree-holders impleaded as a party-respondent had not been served with the notice of the appeal. In the present case one of the respondents had died and his heirs were not brought on the record. In such a situation, the Supreme Court observed that : “ No distinction in principle may be made between Ratan Lal Shah's case, AIR 1970 SC 108 and the present case.” The Supreme Court further observed that : “ Competence of the appellate court to pass a decree