Case: MS. GOLI VIJAYALAKSHMI Vs. YENDRU SATHIRAJU (DEAD) BY LRS

2. When the aforesaid civil appeals were taken up for adjudication, the respondents/plaintiffs raised a preliminary objection to the prosecution of the appeals on the ground that the civil appeals have abated in toto. It is to be further noticed that the defendant no. 2 Goli Sathiraju died on 21 st February, 2006 and his legal heirs have not chosen to come on record and when the matter was listed before the Chamber Judge, it was observed vide Order dated 24 th July, 2009 asNo. 2 in SLP(C ) No. 9401/2006 is for deletion of petitioner no. 2 who is stated to have died on 21/2/2006 and his LRs have not chosen to come on record. Hence, the matter abates insofar as petitioner no. 2 is concerned. I.A. No. 2 isno. 2 in SLP(C ) No. 9401/2006 is the respondent no. 2 in the connected SLP(C ) No. 19919/2006. SLP(C ) No. 9401/2006 insofar as petitioner no. 2 is concerned stands abated. In view thereof, petitioner is permitted to delete respondent no. 2 from the array of parties. I.A. No. 3 is allowed.When the matter came before the Court on 10 th May, 2018, taking note of the view expressed by the Chamber Judge dated 24 th July, 2009, it was observed that in view of the appeal stood abated qua the appellant no. 2, therefore, the appeal in entirety stands abated. Learned counsel for the appellants sought time to examine the issue regarding the abatement of the proceedings in view of the fact that the appeal stood abated qua appellant no. 2 in terms of order dated 24 th July, 2009.The seminal facts which are relevant for the present purpose are that the original plaintiff Yendru Sathiraju filed O.S. No. 175 of 1987 before the learned trial Court praying inter alia declaration of title in respect of schedule ‘A?,?B? & ‘C? properties and for recovery of possession from the defendants/appellants. The prayer is asPlaintiff therefore prays that the Hon?ble Court may be pleased to pass a decree in hisDeclaring his absolute title to the plaint A, B and C schedule properties and for recovery of possession thereof after evicting the defendants thereGranting a mandatory injunction directing the defendants to restore opening in the northern compound wall in between plaint B and C schedule properties and put up the doorway in its formerfor costs of the suit;for such other relief?s as may deem fit and proper under the circumstances of the case.Written statement came to be filed by the defendant no. 1 which was adopted by the defendant nos. 2 and 3 before the trial Court. Although an averment was made in the written statement that the suit schedule ‘A? property fell to the share of defendant no. 1 and the Suit schedule ‘B? property fell to the share of defendant no. 2. The trial Court after adjudicating the matter was pleased to pass a partial decree declaring the title and ownership of the plaintiff/respondent to Suit schedule ‘A? and ‘B? properties and directing the defendants/appellants to deliver possession of the same to the plaintiff/respondent. Against schedule ‘C? property, the claim of the plaintiff/respondent was rejected vide judgment and decree dated 12 th October, 1995. The decree passed by the trial Court is asthe result, the suit is decreed in part with proportionate costs (1) declaring the title and ownership of the plaintiff to plaint ‘A? and ‘B? schedule properties (2) directing the defendants to deliver possession of the plaint ‘A? and ‘B? schedule properties to the plaintiff (3) granting a mandatory injunction directing the defendants to restore the door-way in the compound wall situated to between plaint ‘A? and ‘B? schedule properties; and (4) directing the defendants to pay future profits from the date of filing of the suit till the date of delivering possession of the plaint ‘A? and ‘B? schedule properties to the Plaintiff, the quantum of which has to be ascertained in separate proceedings on an application by the plaintiff. Rest of the suit claim is dismissed.The defendants/appellants preferred Appeal no. 1146 of 1996 before the High Court (and cross objections were filed by the plaintiffs/respondents herein), both came to be dismissed and a judgment and decree of the trial Court came to be confirmed by the High Court vide judgment dated 22 nd November, 2005.It reveals from the record that the defendants/appellants jointly filed SLP(C ) No. 9401 of 2006 before this Court on 30 th March, 2006. At the same time, plaintiffs/respondents also preferred SLP (C ) No. 19919 of 2006 against the rejection of suit schedule ‘C? properties. The factum of the death of appellant no. 2 was brought to the notice of this Court on 7 th May, 2007 and learned counsel sought time to bring on record his legal representatives but on failure to bring on record the legal representatives of the appellant no. 2, the Chamber Judge vide order dated 24 th July, 2009 pleased to treat the special leave petition/appeal as abated so far as appellant no. 2 is concerned and this Court vide order dated 6 th September, 2010 rejected the application filed to implead the legal representatives of appellant no. 2 as proforma respondents. Further, it was specifically observed that the consequence of the abatement of the appeal qua the appellant no. 2 was left open for consideration at the time of final hearing of the appeal.This Court granted leave and accordingly the special leave petitions were converted into Civil Appeal Nos. 8109 and 8110 of 2010 vide order dated 6 th September, 2010. This Court vide order dated 14 th August, 2018 was pleased to dismiss the application for condonation of delay in bringing on record the legal representatives of the appellant no. 2 as also the application for bringing the legal representatives on record on account of the inordinate delay with liberty to raise the issue of abatement of appeal at the time of hearing of the appeal.To examine the question of abatement of appeals, it may be relevant to take note of the fact that initially the suit was filed by the plaintiffs/respondents for declaration of title in respect of 3 schedule properties ‘A?, ‘B? and ‘C? and the trial Court as well as the High Court have partly decreed the suit holding the entitlement of the title of the plaintiffs/respondents in reference to suit schedule ‘A? and ‘B? properties. All the three defendants/appellants to the suit are real brothers and written statement was filed by the first defendant/appellant and adopted by other two defendants/appellants set up a rival title to the suit schedule properties by claiming to have succeeded to them from one common ancestor Smt. Gole Sattemma(foster daughter of Yendru Kannayya-father of the plaintiff).Taking note of the pleadings of the parties and the claims set up by the defendants that they are co-owners of the suit schedule properties(each being entitled to an equal and undivided share), having derived their title from one common ancestor and are similarly placed and identically situated.From the factual backdrop of matter, what has emerged is that the judgment and decree passed by the trial Court has become final qua the appellant no. 2(defendant no. 2) on the appeal stood abated qua him vide order dated 24 th July, 2009 passed by this Court.

Reasoning:
21. Applying the aforesaid principles, the facts of the instant cases on hand clearly manifest that the judgment and decree passed by the trial Court became final qua appellant no. 2(defendant no. 2) upon abatement of the appeal qua him vide order dated 24 th July, 2009. If this Court would permit the remaining appellants to prosecute the appeals and, in the event they were to succeed, indisputedly, there would be mutually inconsistent/contradictory decrees inasmuch as the suit has already been decreed qua appellant no. 2(defendant no. 2) on the one hand and the suit would stand dismissed qua appellant nos. 1 & 3(defendant nos. 1 & 3) or decreed against them in reference to schedule ‘C? property and not against appellant no. 2(defendant no. 2) due to dint of cross appeal filed by the plaintiff.If the instant appeals were to be allowed, the same would result in a situation where the enforcement of the two decrees would be in executable and the enforcement of one would negate or render impossible the enforcement of the other and to further simplify, the plaintiffs/respondents would be entitled to the share of the appellant no. 2(defendant no. 2) in the suit schedule ‘A? and ‘B? properties and there is no way he could enforce the same without negating the enforcement of the other decree viz. dismissal of the suit qua appellant nos. 1 & 3(defendant nos. 1 & 3) since the suit schedule properties each constitute a single unit and the same has not yet been demarcated and/or divided amongst the defendants and without such clear demarcation and delineation of the properties, indisputedly, which has not yet happened, it would be impossible for the plaintiffs/respondents to enforce decree qua the appellant no. 2(defendant no. 2) without impinging on the rights of the appellant nos. 1 & 3(defendant nos. 1 & 3).The submission of learned counsel for the appellants that even if the appeal stood abated qua the appellant no. 2, the other appellants would be entitled to prosecute the appeals relying on the principle of Order 41 Rule 4 & 33 CPC.Suffice it to say that once the appeal stood abated against the appellant no. 2(defendant no. 2) and the decree which stands confirmed qua the appellant no. 2(defendant no. 2) cannot indirectly be reopened to challenge at the behest of persons claiming through him by relying on provisions of Order 41 R 4 & 33 CPC as prayedsubmission appears to be factually incorrect as nowhere in the plaint, the plaintiff has acknowledged any such internal division/demarcation of the suit schedule properties. Although there was a statement made by the appellants/defendants in para 11 of the written statement that the schedule ‘A? property has fallen to the share of the appellant no. 1(defendant no. 1) and schedule ‘B? property has fallen to the share of appellant no. 2(defendant no. 2) but the assertion has no foundation/basis and there was no issue framed by the trial Court and admittedly no finding has been rendered in this regard. In the absence of such finding being rendered by the trial Court, the self-serving assertion made by the defendants/appellants cannot be an evidence of the fact that the suit schedule properties have been divided and demarcated among the defendants/appellants.After going through the decree of the trial Court and confirmed by the High Court in appeal, of which a reference has been made by us in detail and taking note of the tests laid down by this Court, in our considered view both the appeals stand abated in toto.