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2004(6) Supreme 47
SUPREME COURT OF INDIA
(From Karnataka High Court)
S.B. Sinha & S.H. Kapadia, JJ.
Shahazada Bi & Ors. -Appellants
versus
Halimabi (since dead) by her Lrs. -Respondent
Civil Appeal No. 5507 of 1999
Decided on 30-7-2004
Counsel for the Parties :
For the Appellant : P.R. Ramasesh and Ms. Vandana Jain, Advocates.
For the Respondent : G.V. Chandra Sekhar and P.P. Singh, Advocates.
Held : As stated above, the plaintiffs instituted the suit inter alia for recovery of possession of seven rooms more particularly described in schedule B to the plaint. Schedule B gave detailed description of the suit property. Each of the seven rooms has been marked on the sketch tendered in evidence as B1 to B7. In the plaint, the original plaintiffs separately mentioned the rooms in possession of each of the defendants vide paragraph No. 5. They gave a separate schedule to the plaint, which described the rooms in possession of each of the above defendants. Schedule B also gave the dimension of each room. Further, plaintiffs sought possession of each of the rooms separately from each of the defendants vide paragraph No 11 read with schedule B to the plaint. In the evidence, plaintiffs produced and proved the map (Ex.P8) based on the description of the seven rooms which tallied with the description in schedule B . Further, the defendants herein alleged that they were in possession of the seven rooms with consent of Essanullah. In the suit, the defendants further contended that they had perfected their title in respect of each of the seven rooms by adverse title. The most clinching fact was that defendant No.4 had died during the pendency of the suit. Defendant No.4 was in possession of a room leased out to defendant No.5 for rent. Taking into account the above circumstances, the trial Court was right in holding that the suit against defendant No.4 alone stood dismissed as abated. The trial Court was, therefore, right in decreeing the suit of the plaintiffs as prayed for only against defendants No.1 to 3. Order 22 Rule 4 CPC lays down that where within the time limited by law, no application is made to implead the legal representatives of a deceased defendant, the suit shall abate as against a deceased defendant. This rule does not provide that by the omission to implead the legal representative of a defendant, the suit will abate as a whole. What was the interest of the deceased defendant in the case, whether he represented the entire interest or only a specific part is a fact that would depend on the circumstances of each case. If the interests of the co-defendants are separate, as in case of co-owners, the suit will abate only as regards the particular interest of the deceased party. (Para 9)
In the present case, the 4th defendant was found by the trial Court to be in possession of one of seven rooms. He had let it out on rent to defendant No.5. The trial Court on evidence found that Ex.P8 showed different rooms to be in possession of different defendants who claimed to be tenants-in-common in possession of each of the seven rooms. They claimed to have perfected their title by adverse possession to each of the seven rooms. There was no challenge to Ex.P8 in evidence. Nor was there any challenge to description of the suit property in schedule A and schedule B . (Para 10)
JUDGMENT
Kapadia, J.-This appeal by special leave is filed by the defendants against the judgment and order of the Karnataka High Court dated 31st August 1998 passed in R.S.A.No. 76 of 1996 whereby the High Court allowed the second appeal and restored the judgment and decree of the trial Court decreeing the original suit filed by the respondents-plaintiffs for declaration of title to property described more particularly in schedule A and for possession of seven rooms in possession of the defendants-appellants herein, which seven rooms form part of schedule A and more particularly described as schedule B to the plaint.
2. The short point which arises for consideration in this civil appeal is - whether the suit for possession filed by the respondents-plaintiffs stood abated in its entirety as held by the Civil Judge at Kolar Gold Fields in Regular Appeal No. 13 of 1991 (hereinafter referred to for the sake of brevity as "the lower appellate Court").
3. The facts giving rise to this civil appeal are as follows :-
Plaintiffs are the wife and children of Essanullah. They inter alia filed suit No. 417 of 1979 in the court of Additional Munsiff at Kolar Gold Fields for declaration of title to schedule A property and for possession of seven rooms in schedule A more particularly described in schedule B to the plaint. In the present matter, we are concerned with plaintiff s right to recover possession of the seven room. According to the plaintiffs, the property (schedule A ) was a self acquired property of Essannullah who died on 8.1.1970, whereas according to the defendants herein the said property belonged to all the heirs of Moosa Saheb, the father of Essanullah, K.M. Ziauddin (defendant No. 3) and K.M. Obeidulla (defendant No. 4). In 1973, after the demise of Essanullah, defendant No. 1 herein (daughter-in-law of Moosa Saheb) had instituted suit No. 49 of 1973 in the court of Subordinate Judge, Thirupathur, North Arcot district, Tamilnadu for partition alleging that the property in question was not the self acquired property of Essannullah and that they belonged to all the heirs of Moosa Saheb. She was supported by defendants No. 2 to 4. However, that suit was dismissed. It was held that the property in schedule A including the seven rooms was self acquired property of Essanullah. The decree passed by the trial Court in suit No. 49 of 1973 was confirmed in appeal. Consequently, the present suit was filed by the heirs of Essanullah for declaration of title to properties mentioned in schedule A and for recovery of possession of the seven rooms more particularly described in schedule B to the plaint.
4. In the present suit, defendants Nos. 1 to 4 once again alleged that the suit properties belonged to all the heirs of Moosa Saheb and they denied that the suit property was self acquired property of Essanullah. They pleaded that Moosa Saheb had started business in tobacco. That Moosa Saheb died on 6.3.1948. On his demise, his heirs continued the business as family business. The business was run in the name and style of Moosa Tobacco House and after the death of Moosa, the tobacco business continued in the name and style of K.M. Essanullah & Company. It was pleaded in the written statement that all the heirs of Moosa Saheb were tenants-in-common. That they were the partners of the Essanullah & Company. In the written statement, it was pleaded that the suit property was bought out of the income earned by M/s Moosa Tobacco House and consequently, the suit property was the property of the heirs of Moosa Saheb as tenants-in-common and not exclusive property of the deceased Essannullah, from whom the plaintiffs claimed title. Alternatively, the defendants pleaded that they had perfected their title by adverse possession as they, as heirs of Moosa Saheb, have been in permissive possession of the seven rooms for more than 12 years. They conceded that defendant No. 4 had let out a portion to the 5th defendant in 1961 on rent. Howeve
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