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PATNA HIGH COURT
Madan Mohan Prasad and S.K.Choudhuri JJ.
Mahabir
Versus
Lachhmini Devi
Appeal from Original Decree No. 264 of 1965 ;
Decided On : DECEMBER 23, 1974
APPEAL - ABATEMENT - DISMISSAL OF APPEAL AGAINST SOME RESPONDENTS - COMPETENCY OF APPEAL AGAINST REMAINING RESPONDENTS - CONFLICTING DECREE - ORDER 1, RULE 9, ORDER 41, RULE 4, CIVIL PROCEDURE CODE, 1908.
Fact of the Case:
Plaintiffs filed a suit for partition of joint family property. The trial court dismissed the suit. Plaintiffs appealed. During the pendency of the appeal, the appeal was dismissed against some of the respondents for non-compliance with court orders. The appellants sought to proceed with the appeal against the remaining respondents.
Finding of the Court:
The court held that the appeal was incompetent and could not proceed. The court found that there was a likelihood of a decree being passed which would be in conflict with the decree already passed in favor of the respondents against whom the appeal had been dismissed. The court held that it was not open to it to pass such a decree.
Issues: Whether the appeal was competent in view of the dismissal of the appeal against some of the respondents.
Ratio Decidendi: The court held that the appeal was incompetent and could not proceed. The court found that there was a likelihood of a decree being passed which would be in conflict with the decree already passed in favor of the respondents against whom the appeal had been dismissed. The court held that it was not open to it to pass such a decree. The court relied on the following principles: * Order 1, Rule 9 of the Code of Civil Procedure, 1908, which provides that a suit shall not be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. * Order 41, Rule 4 of the Code of Civil Procedure, 1908, which provides that where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, anyone of the plaintiffs or of the defendants may appeal from the whole decree and thereupon the appellate Court may reverse or vary the decree in favor of all the plaintiffs or defendants, as the case may be. * The decision of the Supreme Court in Nathu Ram v. State of Punjab, AIR 1962 SC 89, which held that the Court would refuse to proceed with the appeal in case there is a likelihood of a conflicting decree.
Final Decision: The appeal was dismissed as incompetent.
MADAN MOHAN PRASAD, J.
1. In this appeal, a preliminary objection has been taken to the effect that the appeal has become incompetent in view of the same having been dismissed as against some of the respondents.
2. The appeal is directed against a decree dismissing a suit for partition. The short facts relevant for the present purpose are as follows. The plaintiffs filed a genealogy, according to which one Kanhai had three sons, namely, Gangeshwari, Bisesari and Parmeshwari. Gangeshwari died issueless before the survey. Bisesari and his son Jagan also died before survey. The latter, however, left two sons Sahdeo and Mahadeo, Sahdeo also died long before the suit, and his sons were impleaded as defendants 11 to 14 and 18. His brother Mahadeo was impleaded as defendant No. 8 and his sons were impleaded as defendants 9 and 10. It will be relevant to mention that one of the sons of Sahdeo was Dukharan (defendant No. 11) and his minor son, Rajkapur, was impleaded as defendant No. 27 and as respondent No. 26 to the present appeal. Similarly, another son of Sahdeo named Thakur was impleaded as defendant No. 18 and his minor son, whose name was not known, was impleaded as defendant No. 29 and as respondent No. 28 in this appeal. In the branch of Parmeshwari, he had three sons, Gopi, Lalchand and Jagmohan. Gopis son and grandson were imapleaded as defendants 1 and 2 respectively, and Lalchands son and grandsons as defendants 3 to 7. It needs to be pointed out that one of the sons of Lalchand named Rambaran had a minor son, name not known, who was impleaded as defendant No. 28 and as respondent No. 27. The sons and grandsons of Jagmohan are the plaintiffs.
3. The case of the plaintiffs is that the family had 8.35 acres of land in village Shahpore (mentioned in Schedule No. I) and 75 decimals of land in village Aurangabad (mentioned in Schedule No. II). In the record of survey, Sahdeo and Mahadeo were recorded in respect of 1/3rd share, Lalchand in respect of another 1/3rd and Parmeshwari in respect of the remaining 1/3rd. According to them, Lalchand had separated from his father Parmeshwari and for that reason he was separately recorded in respect of 1/3rd share. At the stage of evidence, the explanation given for the share of Lalchand, as stated above, was that he had taken more lands than he was entitled to according to his share in Schedule I lands in lieu of having given up his share in Schedule II lands. On this basis, the plaintiffs said that they were entitled to 1/6th share in Schedule I lands, defendants 1 and 2 to 1/6th share, defendants 8 to 14 (Mahadeo, his sons and heirs of Sahdeo) to 1/3rd and Lalchand to the remaining 1/3rd in view of what has been stated above. According to the plaintiffs, they were further entitled to half share in Schedule II lands, Lalchand getting no share therein on account of his having become separate from his father and the other half being that of defendants 1 and 2. The case of the plaintiffs in respect of Schedule II lands was that they were the separate properties of Parmeshwari and the other branches had nothing to do with them.
4. Defendants 1 and 2 filed a written statement supporting the case of the plaintiffs. Defendants Nos. 3 to 7 however, contested the allegations of the plaintiffs, and some other defendants by their written statements supported his case. The case of these defendants was that the three sons of Kanhai had separated and were only tenants-in-common at the time of survey. Gangeshwari had, therefore, sold his share in Schedule I lands to Lalchand and that was the reason why Lalchand was recorded in respect thereof in survey papers. They denied the allegation of separation between Lalchand and his father. Further, they alleged that the lands of Schedule I had already been partitioned earlier, and the land so allotted to defendant No. 3 is stated in the Schedule to the written statement filed by him. With regard to Schedule II lands, their case was that 42 decimals o
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