IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 308 of 1999 Reserved on: 11.8.2011. Date of decision: 01.09.2011 Ram Dittu and others ... Appellants Versus Hari Chand and others … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes. For the appellants: Mr. Navlesh Verma, Advocate, for appellant No. 2. For the respondents: Mr. K.D. Sood, Advocate. V.K. Ahuja, J. : This is a Regular Second Appeal under Section 100 C.P.C., filed by the appellants/defendants against the judgment and decree of the Court of learned Additional District Judge, Solan, dated 25.6.1999, vide which he had set aside the judgment and decree passed by the learned Sub Judge 1st Class, Arki, dated 30.11.1996, dismissing the suit of the plaintiff and suit of the plaintiff was decreed for possession of the suit land. 2. Briefly stated, the facts of the case are that suit for permanent prohibitory injunction was filed by Kanhiya Ram, original plaintiff, now represented by his legal representatives respondents No. 1 and 2. It was alleged that the plaintiff he is owner in possession 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 of the land comprised in Khasra Numbers as detailed in the paint measuring 38-19 Bighas, situated in village Ropori, Tehsil Arki, District Solan. It was alleged that defendants Ram Dittu etc., the present appellants, are the adjoining owners, who have no right, title or interest over the suit land. Since they are interfering in the possession of the plaintiff, the suit for permanent prohibitory injunction was filed by the plaintiff. 3. The defendants took the plea that they are in open, peaceful and hostile possession for eth last more than 33 years and they have become owners by way of adverse possession and the plaintiff is not in possession of the suit land and the revenue entries are liable to be corrected accordingly. 4. On the pleadings of the parties, as many as nine issues were framed by the learned trial Court. Issues No. 1 to 3 are material, which are being reproduced below:- “1. Whether the plaintiffs are owners in possession of the suit land, as alleged? … OPP 2. Whether the suit land is in open, peaceful, continuous and hostile possession of defendants for the last more than 33 years, as alleged? … OPD 3. If issue No. 2 is proved in affirmative, whether the defendants have become owners of the suit land by way of adverse possession, as alleged? … OPD” 5. The learned trial Court vide its impugned judgment held that the plaintiff is not owner of the suit land and defendants were held to have become owners by way of adverse possession and, therefore, the suit filed by the plaintiff was dismissed. 6. On appeal, the learned Additional District Judge vide his impugned judgment set aside the judgment and decree of the learned 3 trial Court and the plea of adverse possession taken by the defendants was turned down and the suit of the plaintiff for possession of the suit land was decreed. 7. The present appeal has been filed by the appellants against the decree of possession granted in favour of the plaintiff and against the findings vide which the defendants were not held to be owners in possession of the suit land by way of adverse possession. 8. I have heard the learned counsel for the parties and have gone through the record of the case. 9. During the course of arguments, learned counsel for the parties have mainly relied upon the question as to whether the appeal has abated or not and since that question was material, arguments were heard on this plea and not on the facts of the case. 10. A perusal of the record shows that during the pendency of the appeal, two of the appellants, namely, appellant No. 1 Ram Dittu and appellant No. 3 Dhani Ram died and no application was filed for brining on record the L.Rs of deceased appellants No. 1 and 3. An application was filed under Order 22 Rules 1 and 2 read with Section 151 C.P.C. by the sole surviving appellant No. 2 Mansha Ram that the order passed on 16.3.2010 holding that the appeal has abated against all the appellants be recalled. In reply, the respondents pleaded that no case is made out for setting aside the abatement or recalling the order dated 16.3.2010 since it was informed in presence of the counsel for the appellant that appellants No. 1 and 3 have died more than eight months back, but no steps were taken in that regard. It was pleaded that the L.Rs of appellants No. 1 and 3 were not brought on 4 record and as such, the appeal has abated and no sufficient cause is made out for recalling the order at this stage. 11. The submissions made by the learned counsel for the appellant were that the suit for possession as filed by the appellants was decreed and primarily the suit was for an injunction and since the estate of the defendants is duly represented by appellant No. 2, who has been depositing the mesne profits also as per the order of the Court, therefore, the appeal in question has not abated in full. 12. To substantiate his submissions, learned counsel for the appellant has relied upon the following decisions:- The decision in Sardar Amarjit Singh Kalra (Dead) by LRs. and others Vs. Pramod Gupta (Smt) (Dead) By LRs. and others, (2003) 3 Supreme Court Cases 272, wherein their Lordships had referred to the provisions of Order 22 and had observed that procedure under this provision should be liberally construed so as to serve as handmaid of justice. It was also observed that in case of death of some of the appellants during pendency of the appeal, Court should allow the applications for bringing their LRs on record even if filed belatedly, having regard to serious manner in which it would jeopardise effective adjudication, on merits, rights of other remaining appellants. It was observed that applications should be liberally considered, whether decree appealed against is joint and inseverable or severable and separable. These observations have been in case applications are filed to bring on record the LRs of the deceased appellant and in that connection their Lordships had observed that these provisions should be considered liberally. It is true that as per the latest trend of law in such cases, the applications filed for bringing on 5 record the LRs of the parties are being allowed and even though there has been delay in filing such applications and the idea is that the parties must be heard on merits of the case and accordingly these observations made by their Lordships which are relevant. However, these were made in case the application has been filed to bring on record the LRs of deceased appellant. 13. In the present case, which is very much clear from the above discussion that there are other L.Rs of appellants No. 1 and 3 also, which fact is not disputed and they have not been proposed to be brought on record as the L.Rs of appellants No. 1 and 3. Therefore, the only question arises for consideration as to whether the appeal has abated or not. In case, the application had been filed even at a belated stage, it could have been considered in view of the above decision. 14. Reliance was also placed upon the decision in Ramdas Shivram Sattur Vs. Rameshchandra Popatlal Shah and others, (2007) 8 Supreme Court Cases 400, wherein the observations were made in regard to restoration of appeal dismissed for default of appellant and appeal was dismissed in respect of the some of the respondents. It was observed that since respondent No. 3 had died and her legal representatives are already on record, the appeal would not abate against respondent No. 3. This decision also does not help the appellant as is clear from the observations. 15. Reliance was placed upon the decision in Shahazada Bi and others Vs. Halimabi (since dead) by her LRs., (2004) 7 Supreme Court Cases 354, wherein their lordships were considering the question under Order 22 Rule 4C.P.C., in regard to abatement of 6 suit. It was observed that in case of death of one of the defendants, omission to implead LRs of the deceased defendant has the effect that the suit does not abate in entirety, but only as against the deceased defendant. But where the absence of LRs prevents the court from hearing the appeal as against other respondents, then the appeal abates in toto. It was further held that the interest of the deceased defendant i.e. whether he represented the entire interest or only a specific part would depend on circumstances of each case. If interests of the co- defendants are distinct and separate, suit would abate only as regards the specific interest of the deceased defendant, although all the defendants had been joined together in a single suit. It was also held that the test is whether abatement of suit is only against the deceased defendant and decreeing of the suit against the remaining defendants would result in passing of two conflicting decrees so that enforcement of one would negate enforcement of the other. On facts, held, suit abated only against the deceased defendant. 16. On the other hand, learned counsel for the respondents had submitted that common defence was taken by all the defendants. The decree was one and indivisible in which the shares of the defendants were not defined and in the absence of L.Rs of appellants No. 1 and 3 having been brought on record, the appeal abates as a whole. 17. To substantiate his submissions, learned counsel for the respondents has relied upon the following decision:- The decision in Babu Sukhram Singh Vs. Ram Dular Singh and others, AIR 1973 Supreme Court 204, wherein the 7 observations made in Para-3 are relevant and is being reproduced below:- “Where a joint claim against several defendants is made in a suit and during pendency of appeal by the plaintiff some of the defendants die and no separate claim is made against any of the defendants in appeal, the failure of the plaintiff to bring on record their legal representatives results in abatement of appeal in toto.” Reliance was placed upon the decision in Ramagya Prasad Gupta and others Vs. Murli Prasad and others, AIR 1972 Supreme Court 1181, wherein it was held as under:- “Non-joinder of parties. Abatement of appeal. Suit by partner for dissolution of partnership and accounts. Death of one of respondent sharers during appeal. Failure to bring legal representatives on record. (Per majority) Appeal abates as a whole. Tests.” 18. A perusal of the record shows that a joint written statement was filed by the defendants and it was signed by defendant No. 2 Mansha Ram only, but the plea was taken that the defendants are in adverse possession of the suit land. No specific shares of the defendants were pleaded and as such, it was claimed that all the defendants are jointly in possession and have become owners accordingly. The appeal was also filed before the learned District Judge against all the defendants. The present appeal has also been filed by all the appellants challenging the findings of learned Additional District Judge, who had not accepted their claim that they have become owners by way of adverse possession and the relief of possession was granted to the plaintiff. It may be reiterated that no application to bring on record the L.Rs of appellants No. 1 and 3 was filed, though it is not denied that 8 the appellants are succeeded by their L.Rs also. The decree in favour of the plaintiff is for possession and that possession can be taken from the defendants, who had been held to be in possession, but insofar the findings as against appellants No. 1 and 3 are concerned, it has become final once their L.Rs have not been brought on record and they cannot challenge the findings as against them. The decree in question was indivisible and joint and, therefore, it follows from this discussion that the appeal has abated and it cannot be executed once the decision against two of the appellants have become final and their L.Rs have not been brought on record. 19. In view of the above discussion, I accordingly hold that the appeal in question abates as a whole and as such, is liable to be dismissed, which is dismissed accordingly. ( V.K. Ahuja ), September 01, 2011 Judge (BSS)