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1966 Supreme(Ori) 22
HIGH COURT OF ORISSA
R. K. Das, J.
NILAMANI DHAL - Appellant
Versus
RADHAMOHAN JIW THAKUR - Respondent
Second Appeal 311 Of 1963
Decided On : MAY 25, 1966
B.B.RATH, B.Mohapatra, G.NARASIMHA, G.RANGA RAO, M.K.De, R.C.PATNAIK, R.N.MISRA, S.C.Jena, S.C.SAHU
The abatement of an appeal against one of the respondents results in the abatement of the entire appeal if the decree is a joint decree.
Headnote:
ABATEMENT OF APPEAL - DEATH OF RESPONDENT - NON-SUBSTITUTION OF LEGAL REPRESENTATIVES - EFFECT - JOINT DECREE - APPEAL AGAINST OTHER RESPONDENTS - MAINTAINABILITY - ORDER 22, RULE 4 (4), C. P. C. - APPLICABILITY - REMAND OF CASE - POWER OF COURT - INHERENT POWER TO ADD LEGAL REPRESENTATIVES - DISCRETION OF COURT - ADMINISTRATIVE SUIT - MANAGER OF RELIGIOUS INSTITUTION - POSITION - ANALOGOUS TO NEXT FRIEND OF MINOR - APPLICABILITY OF ORDER 32, C. P. C.
Fact of the Case:
Plaintiffs filed a suit on behalf of the deity Radhamohan Jiew for declaration that the suit-land belongs to the family deity and that the plaintiffs and defendants 1 to 7 are the joint Marfatdars of the said deity. The suit was dismissed by the trial court. On appeal, the lower appellate court reversed the findings of the trial court and held that the deity is owner of the property and that the plaintiffs 1 to 3, defendants 1, 5, 6, 7 and defendant 14 (the purchaser of the interest of defendants 2, 3, and 4) are the joint Marfatdars of the plaintiff deity. Defendant 1 appealed against this judgment.
Finding of the Court:
The court held that the appeal had abated in the lower appellate court due to the non-substitution of the legal representatives of Harachand, one of the respondents who had died during the pendency of the appeal. The court further held that the appeal could not proceed against the other respondents alone as the decree in the lower appellate court was a joint decree in favor of all the respondents.
Issues: 1. Whether the appeal had abated due to the non-substitution of the legal representatives of Harachand? 2. Whether the appeal could proceed against the other respondents alone?
Ratio Decidendi: 1. The court held that the appeal had abated due to the non-substitution of the legal representatives of Harachand. The court relied on the following principles: * The Sebaits of a deity constitute one entity and must act together. * The legal representatives of a deceased Sebait have a heritable right to the Sebaitship and are necessary parties to an appeal involving the deity's property. * The abatement of an appeal against one of the respondents results in the abatement of the entire appeal if the decree is a joint decree. 2. The court held that the appeal could not proceed against the other respondents alone as the decree in the lower appellate court was a joint decree in favor of all the respondents. The court relied on the following principles: * A joint decree cannot be modified or set aside in the absence of all the joint decree-holders. * The abatement of an appeal against one of the joint decree-holders makes the decree in his favor final and prevents the appellate court from modifying or setting aside the decree.
Final Decision: The appeal was allowed on the preliminary ground and the judgment of the lower appellate court was set aside.
R. K. DAS, J.
( 1 ) DEFENDANT 1 is the appellant against the reversing judgment of the Additional Subordinate Judge, Cuttack. The appeal arises out of a suit for declaration that the suit-land belongs to the family deity, Radhamohan Jiew and that the plaintiffs and defendants 1 to 7 are the joint Marfatdars of the said deity.
( 2 ) THE genealogy of the family has been given in the appellate judgment and it is unnecessary to reproduce the same here. It would be sufficient for the purpose of this appeal to state that Achutananda Dhal had four sons. Ananda, Gopi, purusottam and Brundaban. Balakrushna is the son of Ananda. He took Anukula in adoption from Gopi's line and some years after such adoption, Tarakanta his natural son, was born to him Plaintiffs 1, 2 and 3 are the sons of Tarakanta and defendant 1 the appellant in this appeal is the son of Anukula. Defendants 2, 3 and 4 come from Gopi's branch, defendant 6 represents the branch of Purusotom and defendants 6 and 7 that of Brundaban.
( 3 ) THE plaintiffs filed the suit on behalf of the deity Radhamohan Jiew for declaration that the suit-properties are the debottary properties of their family deity Radhamohan Jiew installed in village Guhati in Jaipur Sub-Division in the district of Cuttack and that they and defendants 1 to 7 are the joint Marfatdars of the said deity. In the current settlement records with the connivance of the defendants, the name of the deity as also the name of Tarakant, father of the plaintiffs, have been wrongly omitted. They accordingly file the present suit for a declaration that the suit properties are the debottar properties of their family deity radhamohan Jew and that they and the defendants are the joint Marfatdars and that the current settlement entry is incorrect and that they are entitled to four annas, one pie and half Ganda interest in the suit property. They also prayed for joint possession of the disputed property along with defendants 1 to 7
( 4 ) THE suit-property consists of six lots. Lots 1 to 5 stand in Mouza Govindpur and lot No. 6 in village Bairuan
( 5 ) DEFENDANT 1 was the main contestant in the suit. Defendant 14 is not a member of the family, but in a money-decree against defendants 2 to 4, he purchased the property in a court-sale sometime in 1941 Admittedly he did not purchase the interest of the deity, but only the personal interest of defendants 2 to 4 in lot Nos. 2 and 3 of the disputed property. The case of defendant 1 is that Touzi No. 416 including the Nijchas land appertaining to lot Nos. 1, 2, 3 and 5 was sold in a revenue sale and was purchased by one Nilomani Mohanty. Defendant's father anukul and his mother Baidehi along with Dibakar, the grand father of defendant 2 purchased the property from Nilamani by a sale-deed dated 30-4-1896 and on 25-1914 Dibakar executed a deed of release in favour of Anukul and Baidehi acknowledging their sole interest in respect of the said property Anukul sold a portion of the said property to defendant 6 though there is no sale-deed to support such a transfer. The name of defendant 6 Gajendra has been shown in the D register in the current seltlement records, however, the names of Anukul. Baidehi, father and mother of defendant 1 respeclively, Dibakar the grand father of defendant 2 along with Harachand (defendant 4) as also appear Admittedly the names of the deity and Tarachand do not find place in the said settlement entry. This obviously gave rise to the present suit, plaintiffs other case being that he also made contribution towards the consideration for the purchase made by Anukul. Baidehi and Dibakar, from Nilamoni.
( 6 ) THE trial Court by its judgment dated 24-7-56 found that neither the deity nor tarakant had any interest in the suit-property and the property belongs to the persons in whose favour it was recorded in the current settlement Khatian and the d. Register. He accordingly dismissed the plaintiffs' suit. As against this dismissal the plaintiffs carried an appeal
