Appeal Abates Entirely For Non‑impleading Of Deceased Respondent's Legal Representatives; Appeal Dismissed

A Bench of P. C. Pandit, J. and Sandhawalia, J. heard an appeal by plaintiffs against an order of the Subordinate Judge, First Class, Rewari District (Gurgaon) challenging the trial Court's dismissal of a suit for declaration of ownership shares in agricultural land and the correctness of entries in revenue records. The principal question before the Court was whether the pending appeal had abated in consequence of the death of one respondent (Tej Ram) and non‑impleading of his legal representatives, and if so, whether the appeal could proceed as to other respondents.

The Court allowed the respondent application and held that the appeal had abated in its entirety because the legal representatives of the deceased respondent were not brought on record, and consequently dismissed the appeal. The Court observed that whether an appeal abated wholly or partially depended on whether the appellate Court could “deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.” The Court, in its reasoning, observed: “The question whether a Court can deal with such matters or not, will depend on the facts of each case and, therefore no exhaustive statement can be made about the circumstances when this is possible or is not possible. It may, however, be stated that ordinarily the considerations which weigh with the Court in deciding upon this question are whether the appeal between the appellants and the respondents other than the deceased, can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the Court. The test to determine this has been described in diverse forms. Courts will not proceed with an appeal (a) when the success of the appeal may lead to the Court's 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.” The Court further stated that “the appeal has abated in its entirety by the non-impleading of the legal-representatives of Tej Ram, respondent No.7, and, consequently, it stands dismissed.”

Background

The suit originated when Sheo Lal and others sued Ram Pat and ten others for a declaration that plaintiffs together with defendants 8 to 11 held two‑thirds share, and defendants 1 to 7 held one‑third share in 515 Bighas 3 Biswas in Khewat No.16, village Akera, Gurgaon. Plaintiffs alleged joint Khewat and ancestral shares among descendants of Raju (sons Lekhu, Thana, Hukma and Tiloka), and said that defendants 1 to 7 colluded with Revenue Authorities to record their share as one‑half instead of one‑third. No dispute arose until consolidation proceedings in 1958 revealed the allegedly erroneous entries and prompted the suit.

Defendants 1 to 7 denied the claim, contending that mutual partition had occurred long ago and that they had been in possession of one‑half as full owners for over 50 years; alternatively, they pleaded adverse possession and limitation. The trial Court framed issues on limitation, entitlement to two‑thirds share, and adverse possession, and concluded that defendants 1 to 7 had acquired one‑half share by adverse possession; the suit was dismissed. Plaintiffs appealed (Regular First Appeal No.251 of 1960). While the appeal was pending, respondent No.7 Tej Ram died in May 1968 and his legal representatives were not brought on record.

This Court earlier remanded the matter to the trial Judge to ascertain whether defendants 1 to 7 had been in actual physical possession of one‑half share and from which year, directing the trial Court to receive additional evidence. Respondents then applied under Order 22 Rule 4(3) and Section 151 CPC to stay further proceedings and to hold that the appeal had abated for non‑impleading of Tej Ram’s legal representatives. After considering the principles in State of Punjab v. Nathu Ram (AIR 1962 SC 89) and applying the tests whether the appellate Court could safely decide the controversy in the absence of the legal representatives, the Bench concluded that proceeding would produce a decree inconsistent with the trial Court decree which had become final as to the deceased respondent. The Court therefore held the appeal abated in its entirety and dismissed it, leaving parties to bear their own costs.

Case Details: Case No.: Regular First Appeal No. 251 of 1960 Case Title: Sheo Lal and Others v. Ram Pat and Others Appearances: For the Petitioner(s): Counsel for the appellants (names not specified in record) For the Respondent(s): Counsel for the respondents (names not specified in record)