IMPORTANT POINTS
When all plaintiffs having equal shares in the suit property join in the suit and any of them dies during appeal before High Court, his non-substitution by his legal heirs will not abate the appeal in entirety because the estate will be fully and substantially represented by the other sharers as owners of the suit property.
Letters Patent, wherever applicable, shall prevail over section 98, CPC.
When the name of the original owner was recorded as owner of the suit property even in Record of right duly prepared in the year 1954-55 as evident from khasra-pahani, sudden removal of his name and substitution with name of State all of a sudden without any proceeding for Survey Settlement proceeding or preparation of record of right is illegal.

Headnote:(a) Code of Civil Procedure, 1908 – Order XXII, Rule 4 – Abatement – Plaintiffs having equal shares in the suit property left by their predecessors joining in the suit – Even after death of any of the plaintiffs, the estate will be fully and substantially represented by the other sharers as owners of the suit property – Therefore the entire suit will not abate because of non-substitution of the legal representative(s) of plaintiffs dying during pendency of appeal in High Court – Remaining sharers, having definite shares in the estate of the deceased, shall be entitled to proceed with the appeal without the appeal having been abated. (Para 38)
       AIR 1975 SC 733 : (1976) 1 SCC 212; AIR 1962 SC 89 : (1962) 2 SCR 636; AIR 2003 SC 2588 – Relied upon
       AIR 1962 SC 89; AIR 1966 SC 1427; (1973) 2 SCC 9; (2003) 3 SCC 72 – Referred
       AIR 1977 SC 2029; (2001) 5 SCC 570; (2010) 11 SCC 476 – Distinguished
       (b) Code of Civil Procedure, 1908 – Section 98(2) r/w Clause 36, Letters Patent – Letters Patent, wherever applicable shall prevail over section 98 – Instantly Letters Patent, clause 36, applicable to the High Court – Two learned Judges of the Division Bench passing separate judgments – One Judge allowing the appeal and the other dismissing it – The Judges differing not only on the point of facts but also on the point of law – Chief Justice referring matter to third Judge – Third Judge finally allowing the appeal – In view of complete compliance of Clause 36 of Letters Patent of Andhra Pradesh High Court, impugned judgment cannot be held vitiated. (Para 46, 54)
       (1995) 5 SCC 119; (2010) 13 SCC 303; (1997) 7 SCC 300 – Relied upon
       AIR 1929 (Mad.) 641 (F.B.); AIR 1966 (Patna) 154; AIR 1984 Patna 296; AIR 1979 Patna 115 – Cited with approval
       (2002) 5 SCC 548 – Referred
       (c) Property law – Correction of revenue records – Plaintiff-respondents filing suit for correction and rectification of record of right in respect of S.No.613 measuring 373.22 guntas of land recorded in the name of their predecessors – Alleging rounding off by Revenue authorities and creating a new S.No.119 in favour of State without any notice and legal proceedings – Appellant-State not disputing ownership and possession of suit land plaintiffs’ predecessor who was Khatadar and Pattadar of the same – State also not disputing declaration of succession of the Estate of Late Raja Shiv Raj Bahadur by a Royal Firman of the Nizam in favour of Raja Dhiraj Karan, Dharam Karan, Mehboob Karan and the heirs of Manohar Raj and on death of Raja in favour of the sons of the two brothers and by subsequent Firman in favour of Pratap Karan, one of the plaintiffs – Admittedly Setwar and Vasool Baqui shows the name of Raja as the owner of the said S.No.613 – Even the Khasra Pahani for the year 1954-55 has the entry of the name of Raja Shiv Raj Bahadur as the absolute owner and possessor of the suit land – Title of the plaintiffs proved beyond doubt – One of the Division Bench Judges and the third Judge allowing the appeal in favour of plaintiff-respondents – No infirmity. (Para 73, 74, 75, 77)
       (2015) 3 SCC 695 – Relied upon
       (d) Hyderabad (Abolition of Jagirs) Regulation, 1358 Fasli – Section 17 and 18 – Suit land recorded as self cultivated land of Raja Shivraj Bahadur – Even in Record of right duly prepared in the year 1954-55 as evident from khasra-pahani, name of the original owner Raja Shivraj Bahadur was recorded as the owner – Removal of name of the plaintiff and substitution with name of State all of a sudden without any proceeding for Survey Settlement proceeding or preparation of record of right – Not permissible. (Para 86, 87)
       AIR 1997 SC 2181 – Relied upon
       Facts of the case:
       The plaintiffs (hereinafter referred to as the respondents) filed Title Suit No. 274 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.
       The trial court dismissed the suit.
       The plaintiffs filed appeal before the High Court, which being allowed by one Judge and dismissed by another Judge, was heard by a third Judge.
       The third Judge allowed the appeal of the plaintiffs and set aside the judgment and decree of the trial court.
       Finding of the Court:
       There is no ground to interfere with the impugned judgment.
       Result: Appeals dismissed.

Judgment

M.Y. Eqbal, J.

This appeal being C.A.No.2963 of 2013 arises out of the judgment and order dated 19.12.2011 passed by the 3rd 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 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. 274 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.

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 pattadar and absolute owner of the suit schedule property. The succession 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.A1). On the death of late Raja issueless in the year 1917, 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 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-Respondents that they are, therefore, the absolute owners and possessors of the suit schedule land. The land in Nadergul Village was subject matter of survey 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 wherein the suit schedule land was having Survey 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 survey of Nadergul Village was given effect in the year 1352 Fasli (year 1943) and the said survey has also confirmed the ownership of late Raja in Khata No.3 (Khata No.1 as per survey of 1326 Fasli (year 1917) which also made it clear that the suit lands are private lands of late Raja. The present survey number 613 was shown as the corresponding old Survey Number 579 without any change in the extent of the 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 late Raja was the Khatadar of all the land in Sy.No.613 of Nadergul Village, Saroornagar Mandal, Rangareddy District, Ex.A5. The village map of Nadergul Village and plan of S.No.613 clearly disclose the land as ‘Kancha’ of Late Raja. The total survey numbers in the village are about 875. As per the

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2015 Supreme(SC) 945

Cases Referred (21)