IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1143 of 2005 1. Ayub Ansari. 2. Moinuddin Ansari. 3. Mannan Ansari. All sons of Mohmd. Saied Ansari. All resident of Village Koilwar, Police Station Koilwar, District Bhojpur. --------- Defendant/Respondent/Petitioner Versus 1. Md. Yunus Ansari. 2. Md. Sahbaj Ansari. Both sons of Late Md. Ishak. Both resident of Village Koilwar, Police Station Koilwar, District Bhojpur. 3. Md. Janina Khatoon, W/o late Md. Sadik, Resident of Koilwar, Police Station Koilwar, District Bhojpur. 4. Dul Najma Khatoon, W/o Shan Mohmd, Resident of Mohalla Pakari, Ana, Police Station Ara Nawada, District Bhojpur. ------ Plaintiff/Appellant/Opp. Party 1st Set 5. Najma Khatoon, W/o Md. Mustaqueen, Resident of Village Bahpura, Police Station Maner, District Patna. 6. Hasbunnissa, W/o Nabi Hassan, Resident of Village Khatan Ara, Police Station Ara, District Bhojpur. -------- Defendant/Respondent/Opp. Party IInd Set ----------- PRESENT HON’BLE MR. JUSTICE MIHIR KUMAR JHA O R D E R (10.12.2010) Mihir Kumar Jha, J. Heard Mr. V. Nath, learned counsel for the petitioners. 2. Despite service of notice on the opposite parties and in fact filing of Vakalatnama by one Mr. Arvind Kumar on behalf of the opposite party no.1 as also Mr. Dhirendra Kumar Sinha, Mr. Ram Sewak Prasad and Mr. Manikant Pandey on behalf of the opposite party nos. 2 to 4, no one has appeared when this application was heard both on 2 yesterday as also today. 3. Assailing the impugned order dated 13.4.2005 in Title Appeal No. 21 of 1994, Mr. Nath has submitted that the court below has committed a jurisdictional error in holding that the said appeal, despite being dismissed against the respondent no.5, the vendee, whose sale deed was questioned specifically in the suit by the plaintiff appellant, had not abated as a whole. He has in this regard placed before this Court the relief sought in the plaint, wherein, the sale deed dated 19.3.1985 was specifically assailed by seeking a declaration to be illegal, invalid, inoperative and in-executable. He has accordingly submitted that when Shyam Bahadur Yadav was added as defendant no.5 in the suit and consequently was also made respondent no.5 in the appeal, his being not substituted in the appeal, had led to not only partial abatement of the appeal but, of the appeal as a whole. 4. It is not in doubt that the suit was instituted on 10.7.1985, whereas, the sale deed in favour of Shyam Bahadur Yadav was already executed prior to the institution of the suit on 19.3.1985 and, therefore, the following relief 3 sought in the plaint filed by the plaintiff appellant:- ^^¼1½ vkSoy ;g fd glo gkykr equnjts vjth nkoh ;g rtoht dj fn;k tk; fd ,jkth rdjkjh equnjts flfMmy ^t* vjth nkoh eu eqnbZ dk gS oks eu eqnbZ dks dqy gd oks gfd;r mlesa gkfly gS oks eqnkysgqe dks dksbZ ,ykdk oks ljksdkj ,jkth rdjkjh ls ugha gS oks eqnkysgqe dk eu eqnbZ ds n[ky dCtk esa fulor ,jkth rdjkjh ds NsM+ NkM+ djuk fcydqy utk;t oks xSj dkuwuh gS oks eu eqnbZ dks vykos fnxj gfd;r ds ,d vkSj vfd;r otfj, n[ky eks[kfy;ktu ds gkfly gks x;k gSA ¼1½d ;g ds eqnkysg u01 egen lbn valkjh dks dksbZ gd oks gfd;r rdjkjh tk;nkn dks ';ke cgknqj ;kno dks cspus dk ugha Fkk oks olhdk o;ykdk;keh eoj[ks 19&3&85 ufoLrs egen lbn valkjh blHkh ';ke cgknqj ;kno foydqy byhxy buHksfyM osyknknflrr oks Hkh bu,sQdVho oks buvksijsfVo fMdqesUV gS oks bldh dksbZ ikoUnh eu eqnbZ;ku ij ugha gS oks u gks ldrh gS oks ';ke cgknqj ;kno dks dHkh rdjkjh tk;nkn ij n[ky dCtk ugha gqvkA ¼2½ nks,e ;g fd eu eqnbZ dk n[ky dCtk vkj ,jkth rdjkjh ij eqLrgd dj fn;k tk; oks vxj fdlh uos osn[kyh lkfor gks rks eu eqnbZ dk n[ky dCtk ,jkth rdjkjh ij fnyok fn;k tk;sA ¼3½ lks,e ;g fd gqdqe berukbZ n[ksykQ eqnkysgqe ds lkfnj fd;k tk; oks eqnkysgqe dks ,jkth rdjkjh ij tkus ls jksd fn;k tk;A** were directly referable to the possession of respondent no.5 and that is how he was sought to be impleaded as defendant after institution of the suit at the instance of the plaintiff opposite party. The court below had, while dismissing the suit, not only upheld the validity of the sale deed dated 19.3.1985 but, had also recorded the findings of the said respondent no.5, Shyam Bahadur Yadav to be in possession of 4 the suit property. The appeal, thereafter, has been filed by the plaintiff opposite party in which the said Shyam Bahadur Yadav was respondent no.5 and after his death when such a substitution petition for impleading the heirs of Shyam Bahadur Yadav was filed, such a substitution petition was dismissed by the court on 14.8.2002 and that order had been allowed to become final by the plaintiff opposite party. The abetment of appeal as against the respondent no.5 after dismissal of the substitution petition on 14.8.2002 therefore definitely made out a case for rest of the petitioner respondent in the pending appeal no. 21 of 1994 and when an application was filed on 14.3.2005 for holding that the entire appeal itself had abated on account of non-substitution of respondent no.5, the court below had to apply itself to the relief sought in the suit for finding out as to whether there could a consistent decree if the appeal was allowed. 5. As noted above, the relief no.1 in the suit was with regard to questioning the capacity of the petitioners of making such transfer and if the relief had remained confined to this aspect 5 only, probably the appeal could not have abated even after death of Shyam Bahadur Yadav, inasmuch as, in that event, the sale deed had not been questioned but when relief no.1(ka) specifically sought a declaration with regard to the sale deed, in question, and went to seek a declaration for possession on the ground that Shyam Bahadur Yadav had never come in possession, the findings recorded in favour of Shyam Bahadur Yadav of being a valid title holder on the basis of sale deed dated 19.3.1985 and the resultant decree could not have been set aside in absence of Shyam Bahadur Yadav. Thus, once the appeal against the common decree had abated due to non-substitution of Shyam Bahadur Yadav, the appeal as a whole had itself abated. In this connection reliance may be placed in the judgment of the Apex Court in the case of State of Punjab Vs. Nathu Ram reported AIR 1962 SC 89, wherein, the Apex Court had held that the abatement of a suit/appeal will always depend on the facts of each case but then ordinarily the consideration, which lead to the court to decide the question of abatement, would be as to whether an appeal can proceed (a) when the success of the appeal may lead to the Court’s 6 coming to a decision which be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the Court’s passing a decree which will be contradictory to the decree which had become final with respect to the same subject matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the Court and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective, that is to say, it could not be successfully executed. 6. The reasonings of the court below of either placing reliance of the Order 22 Rule 10A as with regard to giving no information by the counsel with regard to the death of Shyam Bahadur Yadav could not have been made a ground for rejecting the prayer of the petitioner, inasmuch as, the order rejecting substitution petition dated 14.8.2002 had already become final and that could not have been questioned in an indirect manner by taking recourse to the Order 22 Rule 10A. 7 7. The concept of assignee, which has been also taken into account by the court below in course of passing of the impugned order, would not be available for the reason that such a sale deed had already been executed prior to the institution of the suit and the plaintiff opposite party had also specifically prayed for invalidating the sale deed as also questioning the possession of Shyam Bahadur Yadav. Thus, the reliance placed by the court below in the case of Ram Prasad Rauniar & Ors. Vs. Bishwanath Prasad Rauniar & Ors. reported in AIR 1976 Patna 94 also seems to be wholly misplaced. True it is that the abatement of an appeal without going into the merit does effect the case of a party who may have a grievance of its being answered on a technical reason but then if the plaintiff appellant opposite party had not taken any steps for questioning the order dated 14.8.2002 refusing their prayer for substitution of Shyam Bahadur Yadav and his absence could have led to dismissal of the appeal as a whole, the ground of technicality cannot be made basis for allowing an appeal to proceed, which if allowed, could have itself passing of two inconsistent decree. That is how, the issue of abatement of an appeal has 8 to be adjudicated. 8. Thus, in the result, this civil revision application is allowed and the impugned order is set aside. Patna High Court Dated 10th of December, 2010 A.F.R./Rishi (Mihir Kumar Jha, J.)