GOVERNMENT OF ANDHRA PRADESH THR. PRINCIPAL SECRETARY AND OTHERS v. PRATAP KARAN AND OTHERS

The Judgment of the Court was delivered by

M. Y. EQBAL, J. 1. This appeal being C.A.No.2963 of 2013 arises out of tne judgment and order dated 19.12.2011 F passed by the 3rct Judge of the High Court of Andhra Pradesh to whom the matter was referred to by the Chief Justice for final decision against the conflicting judgments passed by the two judges of the said High Court. The appeal was preferred by the plaintiff-respondent before the High Court which was heard by a Division Bench. The two judges of the Division Bench delivered two conflicting judgments, one by allowing the appeal and setting aside the judgment of the trial court and the other by dismissing the appeal and affirming the judgment of the trial court. The 3rd Judge to whom the matter

GOVERNMENT OF ANDHRA PRADESH THR. PRINCIPAL 711 SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]

was referred, passed the impugned judgment upholding the judgment of one of the learned judges and allowing the appeal and decreeing the suit of the plaintiff-respondent. Another appeal being C.A.No.2964 of 2013 has been filed by the transferee of the suit property during the pendency of the appeal in the High Court. Since leave was granted, both the appeals have been heard and disposed of by this judgment.

2. The plaintiffs (hereinafter ·referred to as the respondents) filed Title Suit No. 27 4 of 2007 for rectification of Revenue Records by incorporating their names as owners and possessors in respect of the suit land comprised within Survey No.613 of Nadergul Village, Saroornagar Mandal, Rangareddy District, by deleting the duplicate Sy.No.119 in respect of portion of the land of the said Village. D

3. The factual matrix of the case is that the contesting plaintiff-respondents filed the above suit stating that their predecessor in title late Raja Shivraj Dharmavanth Bahadur (hereinafter referred to as "late Raja") was the pattada( and absolute owner of the suit schedule property. The succession E of the estate of late Raja was declared by a Royal Firman of the Nizam in favour of Raja Dhiraj Karan, late Raja Dharam Karan, late Raja Mehboob Karan and the heirs of Raja ' Manohar Raj vide Firman dated 4th Ramzan 1359 Hizri {Ex.A 1). On the death of late Raja issueless in the year 1917, F the succession of his estate was granted by the Royal Firman in favour of the sons of his two brothers Raja Lokchan Chand and Raja Murali Manohar Bahadur by another Royal Firman dated 5th Safar 13 1361 Hizri, the succession of estate of late Raja Dhiraj Karan was granted in the name of Pratap Karan G who is one of the plaintiffs, under Ex.A2. The other plaintiffs are the successors of legal heirs of Raja Dharam Karan, Raja Mehboob Karan and Raja Manohar Raj.

4. It has been contended on behalf of the plaintiff- H

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A Respondents that they are, therefore, the absolute owners and possessors of the suit schedule land. The land in Nadergul Village was subject matter of suNey and settlement of the year 1326 Fasli (year 1917) and under the said survey and settlement the lands of late Raja were part of Khata No.1 B wherein the suit schedule land was having SuNey Number 579. Late Raja's name was also shown as Khatadar in Setwar and Vasul Baqui. Thus, the suit lands are private lands of late Raja. The revisional suNey of Nadergul Village was given effect in the year 1352 Fasli (year 1943) and the said suNey has also C confirmed the ownership of late Raja in Khata No.3 (Khata No.1 as per suNey of 1326 Fasli (year 1917) which also made it clear that the suit lands are private lands of late Raja. The present suNey number 613 was shown as the corresponding old Su Ney Number 579 without any change in the extent of the 0 land.

5. The Respondent's further case is that the certified copy of Setwar and Vasul Baqui relating to Sy.No.613 for the year 1352 Fasli (year 1943) clearly disclose that l9te Raja was the E Khatadar of all the land in Sy.No.613 of Nadergul Vijlage, Saroornagar Mandal, Rangareddy District, Ex.AS. The village map of Nadergul Village and plan of S.No.613 clearly disclose the land as 'Kancha' of Late Raja. The total suNey numbers in the village are about 875. As per the village map and the corresponding land records ie., Setwar, Vasool Baqui, Touch Plan and Pahanies, the land within the boundaries of S.No.119 consists of an extent of Ac.1-20 guntas, which is in the name of Gaddam Mallaiah as Khatadar. However, as per the endorsement made in the Khasra Pahani (1954-55) there is a remark that the lands of late Raja are shown in separate series and in the Pahanies subsequent to the Khasra, S.No.613 is shown as Shivaraj Bahadur llaka without determining the extent.

6. It is the plaintiffs' case that as per the certified copies H

GOVERNMENT OF ANDHRA PRADESH THR. PRINCIPAL 713 SECRETARYv. PRATAP KARAN [M.Y EQBAL, J.]

of pahanies for the years 1949-50 and 2000-01 the land in A S.No.613 of Nadergul Village stood in the name of late Raja. However, it is alleged that in the Khasra Pahani, S.No.613 is rounded up, which does not convey any meaning. After 1954- 55, Revenue Records are showing the land in S.No.119 with an extent of Ac.355-12 guntas and it is not known as to how the original extent of land in S.No.119 shown asAc.1-20 has swollen to Ac. 355-12 guntas with endorsement of "Sarkari" from the original endorsement of Gaddam Mallaiah, which clearly discloses duplication of the land in S.No.119 and to say the least, the Revenue Record has been tampered with by the custodians of the records with an oblique motive of depriving the legitimate owners of the land in S.No.613 of Nadergul Village. Even today, pahanies, village maps, and touch plan clearly disclose the existence of S.No. 613 with a 0 large chunk of land but purposefully the revenue authorities are not disclosing the details of the ownership of the suit land. The basic record ie., Setwar and Vasul Baqui Register of 1352 Fasli (year 1943). The endorsement in the Khasra Pahani of 1954-55 that the lands of late Raja in S. No. 613 are being E shown separately, is devoid of a sensible meaning. As per the endorsement, it is incumbent on the defendants to continue to maintain the revenue records in the name of late Raja and the plaintiffs being the predecessors in interest as pattadar/ khatadar of the said land in S.No.613 of Nadergul Village. F

7. The plaintiffs' case is that in certified copies of the pahanies for the years 1955-01, there is duplication of S.No.119, and while Gaddam Mallaiah is shown as Khatadar of S. No.119 in respect of land ad measuring Ac.1-20 guntas, G the duplicated S.No. 119 ad measuring more than 355 acres and sometimesAc.373-22 guntas is being shown as Kancha Sarkari notwithstanding the fact that in the Khasra Pahani for the year 1954-55 it is clearly mentioned late Raja as khatadar/ pattadar of the entire land in S.No.119. Since the Khasra H

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A Pahani has confirmed the ownership of late Raja, the same cannot be changed as Sarkari Kancha in the Pahani without there being any proceedings. When the land in S.No.613 is continuing to exist as per the village maps and touch plan, the pahanies and other records are being maintained with mis- B description, by which title of the real owner will not vanish. The plaintiffs who are successors in interest of the land made attempts for correction of the entries in the Revenue Records under A. P. Record of Right in Land and Pattadar Pass Books Act, 1971 (for short "the Act") and the authorities rejected the C claim for correction of entries on the ground that unless the plaintiffs get their title declared in a court of law, the mutation in the name of the plaintiffs cannot be effected under Section 8(2) of the Act. The defendants have no title over the suit schedule land. D

8. The 51h defendant-appellant Manda! Revenue Officer, Saroornagar, while denying the suit claim, contended that the suit is not maintainable. According to him, the plaintiffs are neither owners nor possessors of the suit schedule property and they are in no way concerned with the suit land as per the Revenue Records. It has been pleaded on behalf of the defendants that the plaintiffs did not obtain succession certificate from the competent civil court and have not acquired the suit property of late Raja through succession as pleaded.

9. In the amended written statement, it has been pleaded by the defern;:lant that Nadergul was a Jagir Village and as all the jagirs were abolished under the Hyderabad Abolition of Jagirs Regulation, all Jagir properties vested in the State and the Jagirdars became entitled only to receive compensation amount and the estate of late Raja also got merged with the State and all Jagirs in Hyderabad State were taken over by the Government and transferred to Deewani after publication of Notification No.8 dated 07-04-1949. Further Nazim Atiyat H

GOVERNMENT OF ANDHRA PRADESH THR. PRINCIPAL 715 SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]

had passed an order dated 20-01-1958 in File· No.1 /56 A Warangal/1950 and the legal heirs of Late Raja had participated in the said proceedin~s and staked claim for commutation amount in respect of the Jagir land. Aggrieved by the said proceedings, some of the plaintiffs and certain other successors of late Raja had filed appeal before the Board B of Revenue and the same was dismissed vide order dated 24.07.92 and a review petition was also dismissed by the Board of Revenue and, thereafter, the same persons had filed W.P.No.4999 of 1974 in the High Court and as per the judgment in the said writ petition, dated 22.04.76, the matter C was remanded back to the Board of Revenue and after remand, the appeals filed by the above said persons were dismissed for non-prosecution. ·

10. It has been further pleaded in the aforesaid amended · D written statement that after abolition of Jagirs,· the Jagir lands of late Raja numbering about 8 survey numbers were rounded off and separate numbers from 1 to 194 were given as evidenced in the Khasra Pahani for the year 1954-55 and as such the contention of the plair1tiffs that original Sy.No.119 E admeasuring Ac.1-20 guntas in the name of Gadd am Mallaiah has increased to 355 acres is not only false but the same is contrary to the record. Sy. No.119 admeasuring Ac.1-20 guntas is separate and distinct survey number from the ~y. No.119 which finds place in the Khasra Pahani in separate series of 1 F to 194. This Sy.No.119 is admeasuring Ac.355.00 and recorded as Sarkari Poramboke. Having not filed any declarations under the Land Ceiling Laws, the plaintiffs are not entitled to stake the suit claim. It is further pleaded by the G defendant that the plaintiffs and their ancestors have participated in the enquiry before Nazim Atiyat for the award of commutation amount and hence they are estopped from filing the present suit, that too after lapse of about 5 decades.

11. The trial court, on consideration of evidence came H

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A to the conclusion ttiat the plaintiffs have not made out a case for correction of Revenue Record and dismissed the suit. Aggrieved by the same, the plaintiffs filed the appeal before the High Court, which being allowed by one Judge and dismissed by another Judge, was heard by a third Judge, who after considering the law laid down by the High Court as well as this Court, held that the plaintiffs successfully demonstrated that late Raja was pattadar/khatadar of the land covered by S.No.613 admeasuring 373-22 guntas in the Khasra Pahani, the presumption backward/forward can be applied in his favour and in favour of his heirs that he or they continued to be the pattadar(s). Allowing the appeal of the plaintiffs and setting aside the judgment and decree of the trial court, the learned third Judge of the High Court observed, thus:

D "Unless the State proves that the said land has been confiscated or vest in the State under Jagir Abolition Act on abolition of jagirs or for non filing of the declaration, the property vest in the Government under the provisions of Andhra Pradesh Land Reforms (Ceiling on Agricultural E Holdings), 1973, mere mentioning "Sarkari" in subsequent pahanies or giving duplication S.No.119, title of the original owner will not vanish and it continues to be vest with them. In Khasra Pahani for the year 1954-55 cov~red under Ex.12(a), when it is stated that S.No.613 F has been recorded as "Self Cultivation Dastagardan" and numbers of the Sivaraj Bahadur has been written separately and the same has also been shown as S.No.119 under Ex.12(b). Therefore, late Raja or his heirs continue(s) to be pattadar(s) for the corresponding survey G number and on changing also, but the same cannot become~the government property as contended by the . !earned Advocate General. Further, the identity of land in S. No.613, suit land, as found in Ex.A-10-touch plan and Ex.A- 9-village map cannot undergo any change H

GOVERNMENT OF ANDHRA PRADESH THR. PRINCIPAL 717 SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]

whatsoever and ownership may change from one person to the other but the location of land and its identity with reference to survey number cannot be changed. Therefore, there is no further necessity forthe plaintiffs to seek declaration of their title except to seek correction of record of rights recording the names of the heirs of late Raja i.e. the plaintiffs. Thus, the'plaintiffs are entitled for a declaration for correction of the entries in the record of rights recording the names of the legal heirs of late Raja and also injunction restraining the defendants from interfering with the plaintiffs peaceful possession." C

12. Aggrieved by the decision of the High Court, the defendants - appellants have preferred this appeal.

13. We have heard learned senior counsel appearing ·D forthe parties and also perused the written.submissions filed by them.

14. While raising an additional ground for the first time here in this appeal, Mr. Mukul Rohatgi, learned Attorney General appearing for the appellants, submitted that the learned judges of the Division Bench who heard the aRPeal differed vertically in as much as Section 98(2) of CPC provides for confirmation of decree of the trial court. Reference to the 3rd Judge was made in the present case not after formulating any points of disagreement on the question of law, hence the reference by the Chief Justice to the learned 3rd Judge is ultra vi res. In this connection learned counsel referred the decision of this Court in Tej Kumar vs. Kirpal Singh, (1995) 5 SCC

119. It was further submitted that even if the provisions of G Letters Patent Act are invoked the same cannot override the provisions of Section 98 CPC. In this connection learned counsel referred decisions in P. \I. Hemalatha v. Kattamkandi Puthiya Ma/iackal Saheeda, (2002) 5 SCC 548 and Centre For Environmenta/Law v. Union oflndia, (2010)12 SCC H

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A 303. It was further contended that even if Clause 36 of the Letters Patent of the Madras High Court which has been adopted fortheA.P. High Court is held applicable, nonetheless, in the present case, since no points of agreement have at all been formulated for consideration by the two learned judges who had heard the_ appeal, reference to the 3rd judge was, therefore, clearly incompetent.

15. Learned Attorney General appearing for the appellant raised another point with regard to abatement of the appeal pending before the High Court on the ground inter alia that one of the respondents i.e., Respondent No. 12 died on 21.12.2010 during the pend ency of the appeal before the High Court. Since the prayer made in the suit is the one for declaration of title of the plaintiffs as a single entity the appeal pending in the High Court itself stands abated. Further, the appeal in the High Court got abated as a whole in as much as the decree that was challenged before the High Court was a joint and indivisible decree. In this connection the appellants relied upon the decision in the case of (2006) 6 sec 569 and E (2010) 11 sec 476.

16. On merit of the appeal, the appellants first assailed the finding and the conclusion arrived at by the High Court that the area by name Bhagat Nadegul of Hyderaba.d District is F different from Nadergul Village. According to the appellant there is absolutely no material to show that there is any other village by the name Nadergul in any part of the State. In this connection learned counsel referred the evidence of PW-1.

G 17. Further, the contention of the appellants is that the predecessors of the plaintiffs had sought for commutation in respect of land in Nadergul Village will show that the said lands were treated as Jagir land. The findings of the Atiyat Court qua Nadergul with the relevant Sandas have not been produced for verification. There is no finding anywhere in Exh.

GOVERNMENTOFANDHRAPRADESHTHR. PRINCIPAL 710 SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]

B.1 that Nadergul is not a Jagir Village. Merely because commutation amount was not awarded in respect of Nadergul .Village, it shall not be treated as a private land. It was submitted that none of the plaintiffs entered the witness box and testified on any of the averments made in the plaint and the only person examined was PW-1 as General Power of B Attorney holder of the plaintiffs who could not have any personal knowledge on the issues relating to the grant made by Nizam . and the proceeding relating thereto.

18. On the relevancy of documentary evidence learned. C counsel contended that Sethwar (Exh.A-5), Register ofVasool Baqui and Khasra Pahani in respect of Survey No. 613 are· ' not sufficient to declare title of Raja Shiv Bahadur and, thereafter, the plaintiffs as successors to the Estate in respect of the suit property. Learned counsel contended that it is inconceivable that fairly large extent of 373.22 acres of private land would otherwise not be subjected to any land revenue. According to the appellants since the land of Survey No.613 was a Crown's land it was not assessed to land revenue. With regard to Pahani Patrika from 1949-50 till 2000-01 shows that the land in survey No.613 as Kancha-Sarkari or Kancha-Shiv Raj Bahadur. It was contended that there is no document whatsoever to support the case of the plaintiffs with regard to the title to the suit property. These documents cannot be treated as document of title of the plaintiffs.

19. Lastly, the submissions of the appellants is assuming that without admitting that there has been duplication of survey numbers is accepted that by itself cannot enable the plaintiffs to get a declaration of title unless there is prima facie evidence of title being acquired by their predecessors in interest. In any view of the matter the suit itself is barred by limitation.

20. Mr. Dushyant A. Dave, learned senior counsel appearing for the appellant Corporation in Civil Appeal H

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A No.2964 of 2013, also made his submission on behalf of the Corporation and contended that none of the plaintiffs have entered in the witness box and the only witness who was examined was the plaintiff's GPA holder whose evidence cannot be taken into consideration. Mr. Dave contended that B the plaintiffs have kept quiet for more than 50 years and hence the suit claim is a chance litigation. It was further contended that the judgment of the 3rct learned Judge is opposed to Section 98(2) of the CPC and suggested that the matter will have to be remanded to the High Court. c

21. Per contra, Dr. A.M. Singhvi, learned senior counsel appearing for the plaintiffs-respondents, at the very outset submitted that althoughA.P. Industrial Infrastructure Corporation Limited to whom the suit' property was illegally transferred by D the appellant-State during the pendency of appeal in High Court is neither a necessary party nor have got any right to prefer appeal against the impugned judgment passed by the High Court.

· E 22. On the issue of application of Section 98(2) of CPC, Dr. Singhvi, learned se~ior counsel, submitted thitA.P. High Court is governed by the Letters Patent of Madrasl-ligh Court and, therefore, Section 98(2) of the Code has no application by reason of Section 98(3) of the 'Code. It is submitted that F the decision oOhis Court relied upon by both the parties on this point itself clarify that Section 98(2) of the Code has no application to the High Court which is governed by Letters Patent. In this connection learned counsel also referred the decision of Patna High Court in AIR 1984 Patna 296 and AIR G 1979 Patna 115. Learned counsel therefore submitted that there is no illegality in the reference made by the Chief Justice to the 3rct Judge of the High Court for deciding the appeal.

. 23. Rebutting the submission made by the appellants on the question of abatement learned counsel submitted that

GOVERNMENTOFANDHRAPRADESHTHR. PRINCIPAL 721 SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]

the present suit is for declaration of title and permanent injunction. On the death if Defendant No.12 the right to sue survives with the remaining plaintiffs and, therefore, that the appeal then pending in the High Court will not abate. Learned counsel referred Order 22 Rule 2 CPC and submitted that the objection with regard to abatement of appeal in the High Court B · was neither raised before the High Court nor raised in the grounds of memo of appeal filed before this Court.

24Copy pinpoint24. Replying the submissions made by Mr. Dave, appearing for the appellant Corporation in another appeal, C learned senior counsel appearing for the respondents submitted that a GPA holder can give evidence on matters which are within his knowledge and he is competent enough to give evidence on behalf of the party. In this connection he relied upon AIR 2005 SC 439. D

25Copy pinpoint25. Further submissions on behalf of the respective respondents have been made by Mr. Vikas Singh and Mr. Harin P. Raval, learned senior counsel, that since there is no disp1,1te on the genuineness and authenticity of documentary evidence E on record, the suit claim has fo be decided on documentary evidence i.e. Exhs. A 1-A-19. According to the learned senior counsel Exh. A-5(Sethwar), Exh. A-6(Vasool Baqui Record), Exh. A-12(Khasra Pahani) shows that the name of Shiv Raj Bahadurwas recorded as the Pattadar of the suit land. From F these documents it can be inferred with.out any doubt that ruler of the kingdom has accepted the ownership of Shiv Raj Bahadur and there is no need to have either Patta or title documents. G

26Copy pinpoint26. Referring to the admission in written statement filed by the defendant-appellants it was submitted that there are various other Pattadar in Nadergul Village. Further there is no pleading in the written statement that Shiv Raj Bahadur was a Jagirdar of the suit land. It was further contended that in the H

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A order passed in Nizam Atiyat proceeding it was declared that some villages are not Jagir lands. The declaration by Nizam Atiyat is for the whole village and not for some survey numbers in the Village. Admittedly, there are various other Pattadars in Nadergul Village and, therefore, in the NizamAtiyat proceeding B Nadergul was shown in List-3 as patta lands.

27Copy pinpoint27. So far as the issue with regard to the suit, being barred by limitation it was submitted by the respondents that the suit for declaration of title and injunction falls under Article C 65 of the Limitation Act 1963 where limitation is 12 years from the date when possession of the defendant become adverse to that of the plaintiff. There is no pleading in the written statement that the State has obtained title by adverse possession. In the present case the defendant-State has never set up and or cannot set.up title by adverse possession, hence the suit cannot be held to be barred by limitation. There is no evidence adduced from the side of the defendants that the State ever came in possession. On the contrary the possession of.the plaintiff-respondents was sufficiently proved by the trial court while deciding the injunction petition as also in the finding recorded by the High Court dismissing the appeal against the order of injunction.

28Copy pinpoint28. We have heard learned senior counsel appearing for the parties at length and perused the record.

29Copy pinpoint29. Before we decide the merit of the appeal, we shall take up the interlocutory applications filed by the appellant during the pendency of this appeal. By I.A. No.9/2015 filed on G 201h July, 2015, the appellant stated that during the pendency of the appeal in the High Court, respondent No.12 died but the legal representatives have not been substituted by the respondents, who were appellants before the High Court which resulted in abatement of the said appeal. Hence, prayer has been made that non-substitution of legal representatives of

GOVERNMENT OF ANDHRA PRADESH THR. PRINCIPAL 723 SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]

respondent No.12 in the appeal pending in the High Court, the appeal stood abated by operation of law and consequently judgment and decree passed by the High Court in the appeal suit No.274of2007 is rendered nullity in law.

30Copy pinpoint30. By another I.A. Nos. 10 and 11of2015, the appellant s has stated that during pendency of this appeal respondent No.6 died on 8.4.2015 and respondent No.14 died on 6.1.2014 which were not within the knowledge of the appellant, hence prayer has been made to set aside the abatement and substitute their.legal representatives. C

31Copy pinpoint31. Learned Attorney General appearing for the appellant pressed these two applications relying upon the decision of · this Court in the case of Matindu Prakash (Deeeased) by L.Rs. vs. Bachan Singh and others, AIR 1977 SC 2029; o Amba Bai and others vs. Gopal and others, (2001) 5 SCC 570; Budh Ram and others vs. Bansi and others, (2010) Vol. 11 sec 476.

32Copy pinpoint32. In the case of Matindu Prakash (Deceased) by E L.R.s vs. Bachan Singh and others, AIR 1977 SC 2029, when the appeal was pending in this Court, it revealed that two of the appellants died and no step was taken tq bring the heirs and legal representatives of those appellants·on the record. The question, therefore, that fell for consideration was whether appeal abated as a whole so as to entail a dismissal of the entire suit. This Court, therefore, remitted the matter back to the High Court to record a finding and to decide whether by virtue of the death, the appeal abated as a whole or the appeal had abated qua the deceased appellants before the Civil Appeal is disposed of.

33Copy pinpoint33. In the case of Amba Bai and others vs. Gopal and others, 2001 (5) sec 570, this Court was considering the case where a suit for specific performance by one plaintiff against H

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A the defendant was finally allowed in appeal and the suit was decreed. During the pendency of Second Appeal by the defendant in th_e High Court, the plaintiff died and his legal representatives were brought on record. Subsequently, the defendant also died, but this fact was not brought to the notice of the Court and the appeal was dismissed. In those facts this Court considering the provision of Order 22 Rule 3 of the Code held that "in a case where the plaintiff or the defendant dies and the right to sue does not survive, and consequently the Second Appeal had abated and the decree attained finality inasmuch as there cannot be merger of the judgment or decree · passed in Second Appeal with that passed in the First Appeal." The said decision therefore, in our considered opinion will not apply in the present case. In the instant case, there are more plaintiffs than one and one of them died and the right to sue 0 survives upon the surviving plaintiffs. In the said circumstances Order 22 Rule 2 of the Code will come into operation and the appeal will not abate.

34Copy pinpoint34. In the case of Budh Ram and others vs. Bansi E and others, (2010) Vol. 11 SCC 476, this Court after considering series of judgments rendered by this Court in the State_ of Punjab vs. Nathu Ram, (AIR 1962) SC 89, Sri Chand vs. Jagdtsh Pers had Kishan Chand, Al R 1966 SC 1427, Ramagya Prasad Gupta vs. Murli Prasad, (1973) 2 F SCC 9 and Sardar Amarjit Singh Kalra vs. Pramod Gupta, (200~) 3 sec 72 held as under:-

"17. Therefore, the law on the issue stands crystallised · to the effect that as to whether non-substitution of LRs of the respondent-defendants w~uld abate the appeal in toto or only qua the deceased respondent-defendants, depends upon the facts and circumstances of an individual case. Where each one of the parties has an independent and distinct right of his own, not interdependent upon one or the other, nor the parties have

GOVERNMENT OF AN DH RA PRADESH THR. PRINCIPAL 725 SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]

conflicting interests i_nter se, the appeal may abate only qua the deceased respondent. However, in case, there ·is a possibility that the court may pass a decree contradictory to the decree in favour of the deceased party, the appeal would abate in toto for the simple reason that the appeal is a continuity of suit and the law does not permit two contradictory decrees on the same subject-matter in the same suit. Thus, whether the judgment/decree passed in the proceedings vis-a-vis remaining parties would suffer the vice of being a contradictory or inconsistent decree is the relevant test." C

35Copy pinpoint35. In the case of Harihar Singh vs. Balmiki Prasad = Singh, AIR 1975 SC 733 (1976) 1 SCC 212, this Court observed: D "32. The important point to note about this litig(ltion is that each of the reversioners is entitled to his own specific · sh.are. He could have sued for his own share and got a decree for his share. That is why five Title Suits Nos. 53 and 61 of 1934 and 20, 29 and 41 of 1935 were filed in respect of the same estate. In the present case also the suit in the first instance was filed by the first and second plaintiffs for their one-twelfth share. Thereafter many of the other reversioners who were originally added as defendants were transposed as plaintiffs. Th'ough the decree of the trial court was one, three Appeals Nos. 326, 332 and 333 of '1948 were filed by three sets of parties. Therefore, if one of the plaintiffs dies and his legal representatives are not brought on record the suit or the appeal might abate as far as he is concerned but not as regards the other plaintiffs or the appellants. Furthermore, the principle that applies to this case is whether the estate of the deceased appellant or respondent is represented. This is not a case where no legal representative of Manmohini was on record." H

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36Copy pinpoint36. Similarly, iii the ca~e of State of Punjab vs. Nathu Ram, AIR 1962 SC 89 = (1962) 2 SCR 636, which arose out of acquisitiqn of land under the Defence of India Act, 1939, when the landowners refused to accept compensation offered by the Collector, the dispute was referred by the State B Government to an arbitrator, who passed an award for payment of higher compensation. The State appealed against the award. During pendency of the appeal, one of the landowner namely Labhu Ram died. The High Court, holding that the appeal abated against Labhu Ram and its effect was that the C appeal against another respondent also abated, the appeal was dismissed. When the matter came up to this Court, at the instance of the State Government, this Court deciding the issue held as under: D "4. It is not disputed that in view of Order 22 Rule 4 Civil Procedure Code, hereinafter called the Code, the appeal abated against Labhu Ram, deceased, when no application for bringing on record his legal representatives had been made within the time limited E by law. The Code does not provide for the abatement of the appeal against the other respondents. Courts have held that in certain circumstances, the appeals against the co-respondents would also abate as a result of the abatement of the appeal against the deceased F res1pondent. They have not been always agreed with respect to the result of the particular circumstances of a case and there has been, consequently, divergence of opinion in the application of the principle. It will serve no useful purpose to consider the cases. Suffice it to say G that when Order 22 Rule 4 does not provide for the abatement of the appeals against the co-respondents of the deceased respondent there can be no question of abatement of the appeals against them. To say that the appeals against them abated in certain circumstances, H

GOVERNMENT OF AN DH RA PRADESH THR. PRINCIPAL 727 SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]

is not a correct statement. Of course, the appeals against A them cannot proceed in certain circumstances and have therefore to be dismissed. Such a result depends on the nature of the relief sought in the appeal."

37Copy pinpoint37. Five Judges Constitution Bench of this Court in the 8 case of Sardar Amarjit Singh Kalra vs. Pramod Gupta, AIR 2003 SC 2588, was considering the question as to the effect of death of some of the appellants during the pendency of appeal. In that case, during the pendency of appeal, some of the appellants died on different dates and there was no attempt c to take any step within time for bringing to the Court the legal representatives of the deceased appellants. The respondents, therefore; filed application praying for dismissal of those appeals as having been abated. It appears that during the pendency of appeal in the High Court, some of the appellants were said to have died, the plea of partial abatement of the appeals qua only those deceased appellants were not accepted by the High Court on the view that decree was joint based on common right and interest, the appeal was rejected in toto. On these facts, the Constitution Bench after discussing all earlier decisions held as under:- "27. Laws of procedure are meant to regulate effectively,· as.sist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substa.ntial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. A careful reading of the provisions contained in Order 22 CPC as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination in an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly H

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A placed as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order 22 are not to be construed as a rigid matter of principle but must ever be B viewed as a flexible tool of convenience in the administration of justice." xxxxx

32. But, in our view also, as to what those circumstances c are to be, cannot be exhaustively enumerated and no hard-and-fast rule for invariable application can be devised. With the march and progress of law, the new horizons explored and modalities discerned and the fact that the procedural laws must be liberally construed to really serve as handmaid, make it workable and advance the ends of justice, technical objections which tend to be stumbling blocks to defeat and deny substan(ial and effective justice should be strictly viewed for being discouraged, except where the mandate of law inevitably necessitates it. Consequently, having regard to the nature of the proceedings under the Act and the purpose of reference proceedings and the appeal therefrom, the courts should adopt a liberal approach in the matter of condo nation of the delay as well as the considerations which should weigh in adjudging the nature of the decree i.e. whether it is joint and inseverable or joint and severable or separable. The fact that the Reference Court has chosen to pass a decree jointly in the matters before us is and should be no ground by itself to construe the decree to be joint and inseparable. At times, as in the cases on hand, the court for its convenience might have combined the claims for joint consideration on account of similar nature of the issues in all such cases and for that reason the parties should not be penalized,

GOVERNMENT OF ANOHRA PRADESH THR. PRINCIPAL 729 SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]

for no fault of theirs. Actus curiae neminem gravabit (an act of court shall prejudice no one) is the maxim oftaw, which comes into play in such situations. A number of people, more for the sake of convenience, may be counselled to join together to ventilate, all their separate but similar nature of claims and this also should not result in the claims of all such others being rejected merely because one or the other of such claims by one or more of the parties abated on account of death and consequent omission to bring on record the legal heirs of the deceased party. At times, one or the other parties on either side in a litigation involving several claims or more than one, pertaining to their individual rights may settle among themselv~s the dispute to the extent their share or proportion of rights is concerned and may drop 0 out of contest, bringing even the proceedings to a conclusion so far as they are concerned. If all such moves are allowed to boomer.ang adversely on the rights of the remaining parties even to contest and have their claims adjudicated on merits, it would be a travesty of administration of justice itself. xxxxx

35. In the light of the above discussion, we hold: (1) Wherever the plaintiffs or appellants or petitioners are found to have di$tinct, separate and independent rights of their own and for the purpose of convenience or otherwise, joined together in a single litigation to vindicate their rights, the decree passed by the court thereon is to be viewed in substance as the combination of several decrees in favour of one or the other parties and not as a joint and inseverable decree. The same would be the position in the case of defendants or respondents having similar rights contesting the claims against them. H

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A (2) Whenever different and distinct claims of more than one are sought to be Vindicated in one single proceedings, as the one now before us, under the Land Acquisition Act or in similar nature of proceedings and/ or claims in assertion of individual rights of parties B are clubbed, consolidated and dealt with together by the courts concerned and a single judgment or decree has been passed, it should be treated as a mere combination of several decrees in favour of or against one or more of the parties and not as joint and c inseparable decrees. (3) The mere fact that the claims or rights asserted or sought to be vindicated by more than one are similar or identical in nature or-by joining together of more than one of such claimants of a particular nature, by itself would not be sufficient in law to treat them as joint claims, so as to render the judgment or decree passed thereon a joint and inseverable one. (4) The question as to whether in a given case the decree is joint and inseverable or joint and severable or separable has to be decided, for the purposes of abatement or dismissal of the entire appeal as not being properly and duly constituted or rendered incompetent for being further proceeded with, requires to be determined only witn reference to the fact as to whether the judgment/decree passed in the proceedings vis-a-vis the remaining parties would suffer the vice of contradictory or inconsistent decrees. G For that reason, a decree can be said to be contradictory or inconsistent with another decree only when the two decrees are incapable of enforcement or would be mutually self-destructive and that the enforcement of one would negate or render impossible H the enforcement of the other.

GOVERNMENTOFANDHRAPRADESHTHR. PRINCIPAL 731 SECRETARYv. PRATAP KARAN [M. Y. EQBAL, ~.]

xxxxx A

37. For all the reasons stated above, we are unable to approve the decision or the manner of disposal given by the High Court in these cases, which resulted in grave injustice to the remaining appellants in denying them of 8 their right to have an adjudication of their claims on merits. The High Court ought to have condoned the delay as prayed for, keeping in view the pendency of the main appeals on its file, adopting a liberal and reasonable approach, which would have facilitated an effective adjudication of the rights of parties on either side, avoiding summary rejection of the appeals in entirety. The judgment and decrees passed by the High Court in all these appeals are set aside and appeals are remitted to the High Court to be restored to their original files for being disposed of afresh on merits of the claims of both parties and in accordance with law. These appeals are allowed on the above terms, with no order as to costs."

38Copy pinpoint38. In the instant case, the plaintiffs joined together and filed the suit for rectification of the revenue record by incorporating their names as the owners and possessors in respect of the suit land on the ground inter alia that after the death of their predecessor-in-title, who was admittedly the Pattadar and Khatadar, the plaintiffs succeeded the estate as sharers being the sons of Khatadar. Indisputably, therefore, all the plaintiffs had equal shares in the suit property left by their predecessors. Hence, in the event of death of any of the plaintiffs, the estate is fully and substantially represented by the other sharers as owners of the suit property. We are, therefore, of the view that by reason of non-substitution of the . legal representative(s) of the deceased plaintiffs, who died during the pendency of the appeal in the High Court, entire appeal shall not stand abated. Remaining sharers, having definite shares in the estate of the deceased, shall be entitled H

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