Civil Revision No.1832 of 2000 Against order dated 31.08.2000 passed by the Ist Additional District Judge, Khagaria, in M.T.A. No. 9 of 1994 1. Yogendra Bhagata son of late Maujeelal Bhagat 2. Bijendra Bhagata, 3. Upendra Bhagata, 4. Mahendra Bhagata, All sons of late Maujeelal Bhagat, 5. Nageshwar Bhagata, 6. Ramcharittar Bhagat @ Ram Chalitra Bhagata, Both sons of late Saukhi Bhagat, 7. Jayaprakash Bhagata, son of late Bhuwaneshwari Bhagat, 8. Shivnandan Bhagata, 9. Raghunandan Bhagata, Both sons of late Bhagalal Bhagat, 10. Bishundeo Bhagata, 11. Narayan Bhagat @ Narayan Bhagata, 12. Sachindra Bhagata, 13. Pancho Bhagata, 14. Chhabboo Bhagata, All sons of late Karamlal Bhagat, All are residents of Tola-Sonbarsa, Post Office-Rohiar, Police Station-Chautham, District – Khagaria, ---------Plaintiffs/Respondents/Petitioners. Versus 1. Pritlal Yadava, 2. Nageshwar Yadava, 3. Bholan Yadava, All sons of late Adhin Yadava, residents of Village/Tola – Sonbarsa, Post Office – Rohiar, Police Station-Chautham, District – Khagaria, 4. Laldai Devi, wife of Bimal Yadava, resident of Village- Paras Banni, Post Office- Salkhua, District – Saharsa, 5. Usha Devi, wife of Srikanta Yadava, resident of Village- Pathera, Police Station-District – Madhepura, 6. Sulabh Devi wife of Sanjay Yadava, resident of Village – Sakarauli, Post Office – Jamunia, District – Saharsa, 7. Gulab Kumari, daughter of Bholan Yadav, resident of Village-Sonbarsa, Post Office-Rohiar, Police Station- Chautham, District-Khagaria, 2 8. Balbir Yadava, minor son of Bholan Yadava, under the guardianship of Bholan Yadava, his father, natural guardian and next-friend, resident of Village-Sonbarsa, Post Office- Rohiar, Police Station-Chautham, District-Khagaria, ------ Defendants/Appellants/Opposite Parties, 9. Dhuthari Devi, wife of Ramdeo Yadava, daughter of Mauji Bhagat, resident of Raun, Post Office – Raun, Police Station – Alauli, District – Khagaria, 10. Ramdai Devi, wife of Bahadur Yadava, daughter of Maujee Bhagat, residentof Chornia, Police Station – Mehsi, District – Saharsa, 11. Ambika Devi, wife of Tanuklal Yadava, daughter of Maujee Bhagat, resident of Mahpura, Post Office – Mehsi, Police Station – Mehsi, District – Saharsa, 12. Luhia Devi, wife of Upendra Yadava, daughter of Bhuwaneshwari Bhagat, resident of Bhariahi, Post Office & P.S. – Madhepura, District – Madhepura, -------Plaintiffs/Respondents/Opposite Parties, 13. Karelal Bhagat, son of late Jayasingh Bhagat, 14. Satto Bhagat, 15. Kirtoo Bhagat, Both sons of late Dharamlal Bhagat, 16. Upendra Bhagat, 17. Surendra Bhagat, 18. Gajendra Bhagat, All sons of late Hukumalal Bhagat, residents of Tola – Sonbarsa, Post Office – Rohiar, Police Station – Chautham, District – Khagaria, 19. Malooki Singh, son of late Ajablal Singh, 20. Nageshwar Singh, son of late Sheetal Singh, 21. Bhola Singh, son of late Sundar Singh, All residents of Village – Thattha, Post Office – Thattha, Police Station – Chautham, District – Khagaria, 22. Budhan Yadava, son of Asharfi Yadava, 23. Asharfi Yadava, son of Bhagawat Yadava, Both residents of Tola – Sonbarsa, Post Office – Rohiar, Police Station – Chautham, District – Khagaria, ------Defendants/Respondents/Opposite Parties. -------- For the Petitioners : Mr. S.S. Dwivedi, Senior Advocate, M/s. Ravi Shankar Dwivedi, L.L. Pandey, R.K. Dubey, S.K. Dwivedi, Advocates. 3 For the Opposite : Mr. S.N. Roy, Senior Advocate, Parties Mr. Dronacharya, Advocate. -------- P R E S E N T THE HON’BLE THE CHIEF JUSTICE THE HON’BLE MR. JUSTICE KISHORE K. MANDAL THE HON’BLE JUSTICE DR. RAVI RANJAN ….. Dr. Ravi Ranjan, J. A Division Bench of this Court vide its order dated 12.01.2004 has referred this civil revision for consideration by the Full Bench on the question as to whether on the death of plaintiff no. 12/respondent no. 12 during the pendency of the title appeal filed by the defendants 2nd party against the decree of the trial court, in view of the fact that no application was made within the stipulated period prescribed by law of limitation for substitution of the heirs and legal representatives, the whole appeal had abated or not. 2. Title Suit No. 54 of 1989 was filed by the plaintiffs- respondents-petitioners against the defendants-appellants-opposite parties and the same was decreed on 20.05.1994. The defendants 2nd party preferred Title Appeal No. 9 of 1994. During the pendency of the aforesaid appeal, respondent no. 12(plaintiff no. 12) was reported to have died. However, a controversy arose with regard to the date and place of the death of the aforesaid respondent, as according to the appellants, he died some time in 4 January 1994, that is, during the pendency of Title Suit No. 54 of 1989 itself, whereas, according to the plaintiffs-respondents Ist party, the death took place on 12.10.1994, that is, during the pendency of the title appeal aforesaid. The matter was sent to the trial court for inquiry and after such inquiry the trial court reported that plaintiff no. 12/respondent no. 12, Ram Pravesh Bhagata, died on 12.10.1994. The report aforesaid was challenged in C.R. No. 1062 of 1996, which was disposed of with observation that it would be open for the aggrieved party to raise the objection against the report in the title appeal concerned itself. The matter of substitution vice deceased respondent no. 12 was considered and decided by the first appellate court on 30.08.1997, which held that respondent no. 12 died on 12.10.1994 during pendency of the appeal and as such, the whole appeal stood abated. The aforesaid decision of the first appellate court was challenged by the appellants in Miscellaneous Appeal No. 379 of 1997. A single Bench of this Court while disposing of the aforesaid appeal had upheld the report of the trial court with regard to the factum of the date of death of plaintiff no. 12/respondent no. 12 and had further found that steps for substitution were not taken within time. However, it further observed as under:- ―It is not in dispute that the plaintiffs claiming to be co-owners of schedule II lands 5 filed the suit to obtain possession thereof, which was decreed. Here it was not a case, where one of the appellants died against whom there was a joint decree along with other appellants. Further it is well settled that the definition of legal representative was inclusive in character and its scope was wide and was not confined to legal heirs only, instead it postulated persons who may or may not be heirs, competent to inherit the property of the deceased, but they should represent the estate of the deceased person. It is not in dispute that the other brothers of the deceased respondent no. 12 were already on record, having joint interest, who had been intermeddling with the properties of the deceased.‖ 3. Upon the aforesaid observation, the impugned order was set aside and the matter was remitted back to the first appellate court to reconsider the question as to whether the whole appeal will abate for non-substitution of the heirs and legal representatives of deceased respondent no. 12. 4. After remand on the issue of abatement of appeal, the lower appellate court considered the issue in detail and held that in the facts and circumstances of the case on the death of the plaintiff- respondent no. 12, right to sue survives to the surviving plaintiffs, and, thus, the appeal will not abate as a whole. 5. The plaintiffs-respondents-petitioners aggrieved by the aforesaid order dated 31.08.2000 passed by the Ist Additional District Judge, Khagaria, in M.T.A. No. 9 of 1994 has preferred this 6 civil revision. 6. The matter was considered by a learned single Judge of this Court. Learned Single Judge referred the matter to the Division Bench of this Court. Before the Division Bench of this Court, learned counsel for the petitioners placed reliance on Municipal Council, Mandsaur v. Fakir Chand and another((1997) 3 SCC, 500) and Leelabai(Smt) v. Rajaram and another((1998) 8 SCC, 543(both rendered by two Judges Bench of the Supreme Court), and had contended that the whole appeal would abate, whereas learned counsel for the opposite parties while placing reliance on Johan Oraon( Ekka) and another v. Sitaram Sao(Bhagat) and others, reported in AIR 1964 Patna, 31(Division Bench), Ram Niranjan Das and another v. Loknath Mandal and others, reported in AIR 1970 Patna, 1(Full Bench) and the decision of the Constitution Bench of the Apex Court rendered in Sardar Amarjit Singh Kalra(dead) and others v. Smt. Pramod Gupta(Smt.)(dead) and others, reported in (2003) 3 SCC, 272, had contended that despite death of one of the co-owners, the remaining co-owners represent the estate of the deceased, and thus, the whole appeal will not abate. The Division Bench was of the view that the matter required consideration by the larger Bench of this Court in light of the judgment rendered by the Supreme Court in the 7 aforesaid cases relied upon by learned counsel for the parties, and thus, had referred this matter for consideration by a Full Bench of this Court. 7. Heard Shri S.S. Dwivedi, learned senior counsel for the petitioners, and Shri S.N. Roy, learned senior counsel for the opposite parties. 8. It is contended on behalf of the petitioners that the appeal has abated as against the deceased respondent no. 12 as no step for substitution of his heirs and legal representatives was taken by the appellants within time. The interest of each of the plaintiffs was distinct and separate and they had joined together to institute a suit against the stranger, being interested to the extent to their respective shares only. Therefore, one of the plaintiffs cannot represent the estate of the other plaintiff. The decree being indivisible and inseparable one, the appeal against such plaintiff for the aforesaid reason will abate as a whole. Further submission is that the first appellate court‘s finding that the brothers being already on record as plaintiffs, and being intermeddlers to the estate of the plaintiff- respondent no. 12, would represent his estate, is wholly erroneous inasmuch as in the presence of Class I heirs, the brothers cannot be held to be legal representatives of the deceased. In support of his submissions, learned counsel for the petitioners drew attention of 8 this Court towards the averments made in paragraph 5 of the plaint in Title Suit No. 54 of 1989. For proper consideration of the stand of the petitioners, it would be apt to quote paragraph 5 of the plaint, which is as follows:- ―5. That plaintiffs Nos. 1 to 15 are all separate and each of them are Kartas of their respective joint Hindu Mitakshara Family and have brought this suit in that capacity besides in their individual capacity. Defendants Nos. 1 to 6 are all separate and each are Kaertas and Representatives of their respective separate Hindu Mitakshara Family. Similarly Defendants Nos. 7 to 9 each are Kartas and Representatives of their respective Joint Mitakshara Family and have been sued in that capacity besides in their individual capacity. Defendants Nos. 11 to 13 are also Kartas of their respective joint Hindu Mitakshara Family and have been sued in that capacity besides in their individual capacity. Similarly Defendants Fourth Party are joint and Asharfi Yadava Defendant No. 15 is the Karta of his joint Hindu Mitakshara Family.‖ 9. It has been canvassed by learned counsel for the petitioners that it is apparent from the aforesaid pleadings that each of the plaintiffs and the defendants are separate from each other and are Kartas and representatives of their separate Hindu Mitkshara family.Thus, according to the petitioners, one plaintiff cannot be held to be intermeddler to the estate of other and also cannot be held to be a legal representative of the deceased plaintiff-respondent no. 9 12. 10. In support of his aforesaid submissions, learned counsel for the petitioners placed reliance upon a decision of the Apex Court rendered in Satguru Sharan Shrivastava v. Dwarka Prasad Mathur(dead) through L.Rs. and others, reported in AIR 1996 SC, 3504, wherein the Supreme Court in a suit to avoid a decree passed in previous suit on the ground of fraud, on the death of a judgment debtor in the previous suit(defendant no. 1 in the present suit) held that the suit against him got abated as none of the legal representatives was brought on record. Thus, it has been held that as a consequence of aforesaid, the decree in the previous suit against defendant no. 1 therein has become final. Further, legality of that decree against the other defendants(decree holder in that suit), if given in present suit, would become inconsistent with the decree as against the first defendant. As a result, the subsequent suit was held to have abated as a whole. The petitioners have strongly relied upon a decision of the Supreme Court in Municipal Council, Mandsaur(supra) also. In the aforesaid case, on the death of one of the defendants, it has been held by the Supreme Court that the whole appeal abates. In yet another decision, cited on behalf of the petitioners, in Leelabai (supra) the Supreme Court has set aside the appellate decree passed by the High Court holding that upon death 10 of a minor, father was not competent to pursue the appeal. The appeal became incompetent on account of non-substitution of the mother of the minor, who figures as Class I heir under the Hindu Succession Act. The petitioners further placed reliance upon a decision of the Apex Court rendered in Badni(dead) by L.Rs. and others v. Siri Chand(dead) by L.Rs. and others, reported in AIR 1999 SC, 1077. It is contended that in the aforesaid case before the Apex Court several appeals were preferred against a decree in a suit for possession by way of redemption. It has been held that in the event of the death of one of the appellants in one appeal and failure to bring his legal representatives on record would result in abatement of other appeals also as the decree was passed on common issue against the appellants in all appeals. 11. Learned counsel appearing on behalf of the opposite parties, in reply, contended that the suit was for recovery of possession of the plaintiffs from the trespassers. There is clear cut averment in the plaint that the plaintiffs, though are separate, but cultivation of Schedule II property is joint amongst them and the plaintiffs use to get their share of produce according to their respective shares and interest in the suit land. Thus, their status is of co-owners(not coparceners of joint family). Contention is that one co-owner can represent another in a suit for recovery of possession 11 from trespassers. In support of his submissions, learned counsel placed reliance upon a decision of this Court in Sankru Mahto and others v. Bhoju Mahato and others, reported in AIR 1936 Patna, 548(Division Bench). To establish that in a suit by joint owners for ejecting trespassers, on account of death of one of the plaintiffs, suit will not abate in toto, the opposite parties have relied upon a decision rendered by Division Bench of this Court in Johan Oraon(supra) and a Full Bench decision of this Court in case of Ram Niranjan Das and another v. Loknath Mandal and others, reported in AIR 1970 Patna, 1. It is further contended that though the plaintiffs are separate with regard to schedule II property, since cultivation of the land is still joint and each of the plaintiffs gets the produce as per his share and in that manner they intermeddle with each other.On that account also, as contended, one plaintiff can represent another.Lastly, it is submitted that all the plaintiffs are full brothers.Thus, being the Class II heirs, one brother could represent the other in this suit. Learned counsel for the opposite parties drew the attention of this Court towards the provisions under Order XXII of the Code of Civil Procedure(hereinafter to be referred to as ―Code‖). It is contended that the word ―legal representative‖ has been used therein, which stands defined in section 2(11) of the Code, which also includes any person, who intermeddles with the 12 estate of the deceased. Learned counsel lastly relied upon a Constitution Bench decision of Supreme Court in Sardar Amarjit Singh Kalra and others(supra). 12. For better appreciation of the matter, it would be apt to quote paragraph 12 of the plaint, which is as under:- ―12. That though all the plaintiffs are separate but cultivation of land of Schedule— ‗II‘ of this plaint is joint among the plaintiffs and each of the plaintiffs get their share of produce according to their share and interest in the suit-land (land of Schedule—‗II‘) of the plaint.‖ 13. The pleadings of the plaintiffs unequivocally show that the plaintiffs are jointly cultivating the lands in dispute and thereby it is crystal clear that all the remaining plaintiffs have intermeddled with the estate of deceased plaintiff no. 12, who had an interest in the lands measuring 1 bigha 5 kathas bearing Zamabandi no. 226 despite existence of widow, son and daughter of deceased plaintiff no. 12/respondent no. 12. 14. This stands well settled by the Supreme Court in Gur Narain Das v. Gur Tahal Das, reported in AIR 1952 SC, 225(paragraph 10) and Mohd. Bagar v. Nainur Nisa Bibi, AIR 1956 SC, 548(paragraph 7) that possession of one co-owner is possession on behalf of all unless ouster is pleaded and proved. The second judgment was rendered by a Three Judges Division Bench of 13 the Supreme Court. 15. The relevant provision under Order XXII of the Code is that where one of the two or more plaintiffs or defendants dies and the right to sue does not survive against the surviving plaintiffs or the defendants and the legal representatives of the deceased plaintiff or defendant are not made party within the time limited by the law, the suit shall abate against the deceased plaintiff or defendant. 16. This issue came for consideration before a Division Bench of this Court in Sankru Mahto(supra). This Court in its aforesaid decision had held that the test whether a right to sue survives in the surviving plaintiffs or against the surviving defendants is whether the surviving plaintiffs can alone sue or the surviving defendants could alone be sued in the absence of the deceased plaintiff or the defendant, respectively. 17. In the case in hand, suit was filed to obtain possession from the trespassers. A Division Bench of this Court in the decision rendered in Johan Oraon(supra) has held that a suit by one of joint owners to obtain possession by ejecting a trespasser is maintainable even though other joint owners have not been impleaded as parties to the action. It is further held therein that in a case of this nature, the Court can proceed with the suit or appeal even when one of the joint owners dies and his heirs are not brought on the record. This view 14 was upheld in a decision by a Full Bench of this Court in Ram Niranjan Das(supra). In the aforesaid decision, this Court has held that a co-owner alone can institute a suit for recovery of possession of land held by him along with other persons against a trespasser, who had dispossessed all the co-owners and obtain a decree for recovery of possession of entire area, however, the rights of other co- owners would remain intact. 18. The judgment in Municipal Council(supra) strongly relied upon by the learned counsel for the petitioners is of no help. The Supreme Court in that case has held the decision of the Madhya Pradesh High Court as not erroneous, which decided that the second appeal filed by the Municipal Council stood abated in view of the fact that the legal representatives of one of the co-owners were not brought on the record when the appeal was pending before the lower appellate court. Facts and points urged in the Municipal Council(Supra) and this case are entirely different and each case has to be decided on the basis of its own factual backgrounds and points urged. 19. I also note the following circumstances why the ratio of the above decision in Municipal Council case(supra) is not applicable on the facts of this case. The Supreme Court in Gur Narain Das and another v. Gur Tahal Das and others, reported 15 in AIR 1952 SC, 225 and Mohammad Baqar and others v. Naim- un-Nisa Bibi and others, reported in AIR 1956 SC, 548, held that possession of one co-sharer is possession on behalf of all. That question was not raised and canvassed seriously in Municipal Council Case(Supra). Secondly, on the facts of this case it can be seen that from the statement made in the plaint it could not be definitely held that the property was a coparcenery property, which could be represented by a Karta. Here in the instant case, according to the plaintiffs themselves, the property was acquired by Tilak Bhagat, who was the Karta and Manager of the joint family, which was partitioned and thus, all the plaintiffs had become co-owners and that property even thereafter remained under their joint cultivation. Thirdly, the status of an intermeddler, as envisaged in Section 2(11) and Order XXII of the Code, was not an issue canvassed, argued and considered in the Municipal Council case(Supra). It would be apt to quote Section 2(11) of the Code, which is as under:- ―2(11) ―legal representative‖ means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.‖ 16 Fourthly, the Supreme Court in Andhra Bank Ltd. V. R.Srinivasan and others, reported in AIR 1962, 232(three Judges Division Bench), itself has held that legal representative is ―a person who in law represents the estate of a deceased person‖. Estate does not mean the whole of the estate. Even a legatee who obtains only a part of the estate of the deceased under a Will can be said to represent his estate and is, therefore, a legal representative under Section 2(11) of the Code(includes intermeddlers). Fifthly, in Mahabir Prasad v. Jage Ram and others, reported in AIR 1971, Supreme Court, 742, it has been held that the person jointly interested in decree has been made a party respondent and on his death his heirs have not been brought on record, does not per se divest the appellate court of its jurisdiction to pass decree in appeal. When a party respondent in an appeal dies and one of his legal representatives is already on record in another capacity the appeal does not abate even though no application is made to bring them on record. Sixthly, in another decision in Harihar Prasad Singh and others v. Balmiki Prasad Singh and others, reported in AIR 1975 SC, 733, the Supreme Court has held that where each one of the plaintiffs could have filed a suit for his share, mere fact that all of them joined together as plaintiffs and filed one suit does not mean 17 that if for one reason or other the suit of one of them fails or abates the suit of the others also fails or abates. The decree is in substance the combination of several decrees in favour of several plaintiffs. If in an appeal against the decree one of the plaintiffs is not added as a respondent, it only means that the decree in his favour cannot be set aside or modified even if the appeal succeeds against other plaintiffs in respect of their interest. There would, in that case, be no conflict between the decrees as the decree is a combination of several decrees. Seventhly, in Neelavathi and others v. N. Natarajan and others, reported in AIR 1980 Supreme Court, 691, the Supreme Court held that position of one co-owner is possession of all. Lastly, in Custodian of Branches of Banco National Ultramarino v. Nalini Bai Naique, reported in 1989 Supplementary Vol. II SCC, 275, it has been held that the definition of ―legal representative‖ is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead it stipulates a person, who may or may