Law Web: What will be effect of death of some of appellants during pendency of appeal?

Five Judges Constitution Bench of this Court in the 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 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,

assist and aid the object of doing substantial and real

justice and not to foreclose even an adjudication on merits

of substantial 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 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 viewed as a flexible tool

of convenience in the administration of justice.”

xxxxx

32. But, in our view also, as to what those circumstances

are to be, cannot be exhaustively enumerated and no hardand-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 substantial 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 condonation 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, for no

fault of theirs. Actus curiae neminem gravabit (an act of

court shall prejudice no one) is the maxim of law, 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 themselves the dispute

to the extent their share or proportion of rights is concerned

and may drop out of contest, bringing even the proceedings

to a conclusion so far as they are concerned. If all such

moves are allowed to boomerang 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.

35. In the light of the above discussion, we hold:

(1) Wherever the plaintiffs or appellants or petitioners

are found to have distinct, 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.

(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 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 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 with reference to the

fact as to whether the judgment/decree passed in the

proceedings vis-à-vis the remaining parties would

suffer the vice of contradictory or inconsistent

decrees. 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 the enforcement of the other.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.2963 OF 2013

Government of Andhra Pradesh Vs Pratap Karan

Citation;(2016)2 SCC82: AIR 2016 SC 1717

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

1Page 2

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 plaintiffrespondent

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.

2Page 3

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

3Page 4

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 plaintiffRespondents

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

4Page 5

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 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

5Page 6

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 Ilaka without

determining the extent.

6. It is the plaintiffs’ case that as per the certified copies of

pahanies for the years 1949-50 and 2000-01 the land in

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 as Ac.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

6Page 7

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 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 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.

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 admeasuring Ac.1-20 guntas,

7Page 8

the duplicated S.No. 119 admeasuring more than 355 acres

and sometimes Ac.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 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-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 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

8Page 9

cannot be effected under Section 8(2) of the Act. The

defendants have no title over the suit schedule land.

8. The 5th defendant-appellant Mandal 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 defendant 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

9Page 10

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 had

passed an order dated 20-01-1958 in File No.1/56

Warangal/1950 and the legal heirs of Late Raja had

participated in the said proceedings 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

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

was remanded back to the Board of Revenue and after

remand, the appeals filed by the above said persons were

dismissed for non-prosecution.

10Page 11

10. It has been further pleaded in the aforesaid amended

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 plaintiffs that original Sy.No.119

admeasuring Ac.1-20 guntas in the name of Gaddam 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 Sy.No.119

which finds place in the Khasra Pahani in separate series of 1

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 defendant that the plaintiffs and their ancestors have

participated in the enquiry before Nazim Atiyat for the award

11Page 12

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 to the

conclusion that 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:

12Page 13

“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

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 covered under

Ex.12(a), when it is stated that S.No.613 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 number and on changing also, but the

same cannot become the government property as contended

by the learned 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

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 for the 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.”

12. Aggrieved by the decision of the High Court, the

defendants – appellants have preferred this appeal.

13Page 14

13. We have heard learned senior counsel appearing for the

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 appeal 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

vires. 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

Letters Patent Act are invoked the same cannot override the

provisions of Section 98 CPC. In this connection learned

counsel referred decisions in P.V. Hemalatha v.

14Page 15

Kattamkandi Puthiya Maliackal Saheeda, (2002) 5 SCC

548 and Centre For Environmental Law v. Union of India,

(2010)12 SCC 303. It was further contended that even if

Clause 36 of the Letters Patent of the Madras High Court

which has been adopted for the A.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

rd 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 pendency 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

15Page 16

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 SCC 569 and

(2010) 11 SCC 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 Hyderabad District is

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.

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

16Page 17

Court qua Nadergul with the relevant Sandas have not been

produced for verification. There is no finding anywhere in

Exh. 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

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

counsel contended that Sethwar (Exh.A-5), Register of Vasool

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

17Page 18

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.

18Page 19

20. Mr. Dushyant A. Dave, learned senior counsel appearing

for the appellant Corporation in Civil Appeal 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 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 3rd 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.

21. Per contra, Dr. A.M. Singhvi, learned senior counsel

appearing for the plaintiffs-respondents, at the very outset

submitted that although A.P. Industrial Infrastructure

Corporation Limited to whom the suit property was illegally

transferred by the appellant-State during the pendency of

19Page 20

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.

22. On the issue of application of Section 98(2) of CPC, Dr.

Singhvi, learned senior counsel, submitted that A.P. High

Court is governed by the Letters Patent of Madras High 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 the

decision of this 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

1979 Patna 115. Learned counsel therefore submitted that

there is no illegality in the reference made by the Chief Justice

to the 3rd Judge of the High Court for deciding the appeal.

20Page 21

23. Rebutting the submission made by the appellants on the

question of abatement learned counsel submitted that 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

was neither raised before the High Court nor raised in the

grounds of memo of appeal filed before this Court.

24. Replying the submissions made by Mr. Dave, appearing

for the appellant Corporation in another appeal, 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.

21Page 22

25. 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

dispute on the genuineness and authenticity of documentary

evidence on record, the suit claim has to be decided on

documentary evidence i.e. Exhs. A1-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 Bahadur was recorded as the Pattadar of the suit

land. From these documents it can be inferred without 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.

26. 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

22Page 23

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 Nizam

Atiyat proceeding Nadergul was shown in List-3 as patta

lands.

27. 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 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

23Page 24

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.

28. We have heard learned senior counsel appearing for the

parties at length and perused the record.

29. 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 20th 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 respondent

24Page 25

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.274

of 2007 is rendered nullity in law.

30. By another I.A. Nos. 10 and 11 of 2015, the appellant

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.

31. Learned Attorney General appearing for the appellant

pressed these two applications relying upon the decision of

this Court in the case of Matindu Prakash (Deceased) by

L.Rs. vs. Bachan Singh and others, AIR 1977 SC 2029;

Amba Bai and others vs. Gopal and others, (2001) 5 SCC

25Page 26

570; Budh Ram and others vs. Bansi and others, (2010)

Vol. 11 SCC 476.

32. In the case of Matindu Prakash (Deceased) by 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 to 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.

33. In the case of Amba Bai and others vs. Gopal and

others, 2001(5) SCC 570, this Court was considering the case

26Page 27

where a suit for specific performance by one plaintiff against

the defendant was finally allowed in appeal and the suit was

decreed. During the pendency of Second Appeal by the

defendant in the 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 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.

27Page 28

34. In the case of Budh Ram and others vs. Bansi 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.

Jagdish Pershad Kishan Chand, AIR 1966 SC 1427,

Ramagya Prasad Gupta vs. Murli Prasad, (1973) 2 SCC 9

and Sardar Amarjit Singh Kalra vs. Pramod Gupta, (2003)

3 SCC 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 would 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 conflicting interests inter 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-à-vis

remaining parties would suffer the vice of being a

contradictory or inconsistent decree is the relevant test.”

28Page 29

35. In the case of Harihar Singh vs. Balmiki Prasad

Singh, AIR 1975 SC 733 = (1976) 1 SCC 212, this Court

observed:

“32. The important point to note about this litigation is that

each of the reversioners is entitled to his own specific share.

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 onetwelfth

share. Thereafter many of the other reversioners who

were originally added as defendants were transposed as

plaintiffs. Though 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.”

36. Similarly, in the case of State of Punjab vs. Nathu

Ram, AIR 1962 SC 89 = (1962) 2 SCR 636, which arose out of

acquisition 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 Government to

an arbitrator, who passed an award for payment of higher

29Page 30

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 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:

“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 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 respondent. 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 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, is not a correct

statement. Of course, the appeals against 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.”

30Page 31

37. Five Judges Constitution Bench of this Court in the 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 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,

assist and aid the object of doing substantial and real

justice and not to foreclose even an adjudication on merits

of substantial 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 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 viewed as a flexible tool

of convenience in the administration of justice.”

xxxxx

32. But, in our view also, as to what those circumstances

are to be, cannot be exhaustively enumerated and no hardand-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 substantial 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 condonation 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, for no

fault of theirs. Actus curiae neminem gravabit (an act of

court shall prejudice no one) is the maxim of law, 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 themselves the dispute

to the extent their share or proportion of rights is concerned

and may drop out of contest, bringing even the proceedings

to a conclusion so far as they are concerned. If all such

moves are allowed to boomerang 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 distinct, 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.

(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 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 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 with reference to the

fact as to whether the judgment/decree passed in the

proceedings vis-à-vis the remaining parties would

suffer the vice of contradictory or inconsistent

decrees. 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 the enforcement of the other.

xxxxx

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 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.”

38. 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

to proceed with the appeal without the appeal having been

abated. We, therefore, do not find any reason to agree with

the submission made by the learned counsel appearing for the

appellants.

39. By filing another I.A. No.7 of 2015 on 17.4.2015, the

appellants sought permission to urge additional grounds as

contemplated under Section 98 of the Code of Civil Procedure.

Admittedly, this ground was not urged before the learned third

Judge of the High Court at the time of hearing of the appeal.

Be that as it may, we allow the appellant to urge additional

ground in this appeal.

40. By urging this additional ground learned senior counsel

for the appellants submitted that the procedure adopted by

the High Court in the disposal of the appeal is not in

consonance with the provisions contained in Section 98 of the

CPC. Learned counsel submitted that the appeal in the High

Court was originally heard by two judges who differed in their

opinion and wrote two separate judgments. While giving

judgments, both the judges have not recorded their opinion on

36Page 37

the point of difference on the point of law. Without

formulating the point of difference the matter was referred to a

third judge by the Chief Justice and the third judge finally

passed the impugned judgment concurring with one of the

judge. According to the learned counsel, therefore, the

impugned judgment is vitiated in law and cannot be

sustained. In this connection, learned counsel relied upon the

decision of this Court in Tej Kaur and Another vs. Kirpal

Singh and Another, (1995) 5 SCC119; P.V. Hemalatha vs.

Kattamkandi Puthiya Maliackal Saheeda and Another,

(2002) 5 SCC 548; Pankajakshi (Dead) Through Lrs. And

Others vs. Chandrika and Others, (2010) 13 SCC 303.

41. Section 98 of the Code of Civil Procedure reads as under :-

“98. Decision where appeal heard by two or more Judges.

(1) Where an appeal is heard by a Bench of two or more

Judges, the appeal shall be decided in accordance with the

opinion of such Judges or of the majority (if any) of such

Judges.

(2) Where there is no such majority which concurs in a

judgment varying or reversing the decree appealed from,

such decree shall be confirmed:

Provided that where the Bench hearing the appeal

is composed of two or other even number of Judges

belonging to a Court consisting of more Judges than those

37Page 38

constituting the Bench and the Judges composing the Bench

differ in opinion on a point of law, they may state the point of

law upon which they differ and the appeal shall then be

heard upon that point only by one or more of the other

Judges, and such point shall be decided according to the

opinion of the majority (if any) of the Judges who have heard

the appeal including those who first heard it.

(3) Nothing in this Section shall be deemed to alter or

otherwise affect any provision of the letters patent of any

High Court.”

42. From the legislative history of enactment of Code of Civil

Procedure, it would appear that Section 98 of the CPC was for

the first time enacted in 1861 by the Act amending the Civil

Procedure Code of 1859. Subsequently in 1862, Letters

Patents were issued establishing the High Court of Madras

and these Letters Patents were modified in 1865. Clause 36 of

the Letters Patent declared that in exercise of appellate

jurisdiction the certain procedure is to be adopted. In 1877

and 1882 amendments were brought in the Code of Civil

Procedure but no provision was made to the effect that the

Code shall not affect the Letters Patent. Thereafter many High

Courts and the Privy Council interpreted the provisions of

Section 98 and Clause 36 of the Letters Patent and it was

38Page 39

consistently held by the Full Bench of the Madras High Court

as under:-

“The result is that it is now beyond all doubt that Clause 36

of the Letters Patent applies to all appeals. It may be asked,

when does Section 98 of the Civil Procedure Code have any

operation and why should the legislature not say that the

section does not apply to Chartered High Courts instead of

adding an explanation to the section? The reply is that

Section 98 applies now only to Courts other than the

Chartered High Courts, that is, the Chief Courts and Courts

of judicial Commissioners and the reason why the legislature

adopted this particular form of elucidating the matter is that

it was intended to retain Section 98 as applicable even to

Chartered High Courts but to make the application subject

to Clause 36 of the Letters Patent. If, at any time, Clause 36

of the Letters Patent ceases to exist, Section 98 will come

into operation. It is to attain this particular result that the

explanation was added to Section 98 instead of saying that

Section 98 does not apply to Chartered High Courts at all. I

would answer the question referred to us thus:”

43. Clause 36 of Amended Letters Patent of the High Court of

Madras, which has been made applicable to the High Court of

Andhra Pradesh, reads as under:-

“36. Single Judge and Division Courts:-- And we do

hereby declare that any function which is hereby directed to

be performed by the said High Court of Judicature at

Madras, in the exercise of its original or appellate

jurisdiction, may be performed by any Judge, or by any

Division Court thereof, appointed or constituted for such

purpose in pursuance of Section 108 of the Government of

India Act, 1915 and in such Division Court is composed of

two or more Judges, and the Judges are divided in opinion

as to the decision to be given on any point, such point shall

be decided according to the opinion of the majority of the

39Page 40

Judges, if there shall be a majority, but if the Judges should

be equally divided they shall state the point upon which

they differ and the case shall then be heard upon that point

by one or more of the other Judges and the point shall be

decided according to the opinion of the majority of the

Judges who have heard the case including those who first

heard it.”

44. Learned senior counsel appearing for the respondents in

response to the argument on Section 98 of the CPC, submitted

that in view of Sub-section (3) of Section 98, the provision of

Section 98 of the Code will not apply. Ld. senior counsel

submitted that this Court cannot go into that question for the

reason that the appellants neither raised this point before the

third judge who passed the impugned judgment nor the

appellants have been granted permission to raise the question

of application of Section 98 of the CPC. According to the

learned counsel having regard to the procedure provided

under the Letters Patent of the High Court, the objection

cannot be entertained.

45. Firstly, we shall discuss the decisions cited by the

learned counsel on both sides. In the case of Tej Kaur and

40Page 41

another (supra), a Division Bench of this Court has

considered the provisions of Section 98 of CPC. The Attorney

General put reliance on paragraphs 3, 6 and 9 of judgment

whereas Dr. Singhvi relied on paragraphs 8 and 9 of the

judgment. Hence we extract paras 3, 6, 8 and 9 of judgment

which are as under:-

“3. The question, therefore, is whether the finding of the

court below that the will has not been proved is a finding of

fact? If so, whether in the absence of majority opinion of the

Division Bench, the confirmation of the decree of civil court

is valid in law? Thirdly, whether this Court can examine the

case on merits to find whether the will is validly proved, in

which event would sub-section (2) of Section 98 be not

rendered otiose or ineffective?

6. In other words, the difference of opinion between Judges,

who constitute the Bench hearing the appeal, on a point of

law alone would be referred to a third or other Judges

according to the rules of that High Court. By implication, on

question of fact, when there is no majority opinion varying or

reversing the decree appealed from, such decree should be

confirmed.

8. The ratio in Jayanti Devi v. Chand Mal Agrawa which has

been referred by Shri Bagga, is inapplicable to the point in

issue. Therein, because of what has been provided in subsection

(3) of Section 98 CPC, the letter patent power was

taken aid of and it was held that the letter patent court was

not confined to the hearing of the appeal by the third Judge

on the question of law only, on which the Judges hearing the

appeal had differed. Such a difference of opinion could be on

a question of fact as well. It could, thus, be seen that the

reference there was under the letters patent which power

has been expressly preserved by sub-section (3) of Section

98. But in the case at hand, the letters patent power was not

available and therefore, by operation of sub-section (2) of

Section 98, the decree of the court below stands affirmed.

41Page 42

9. The question then is whether this Court could nullify the

scheme of Section 98(2) by examining the dispute on merits

and by implication render sub-section (2) surplusage or

otiose. In our considered view the contention of the appellant

cannot be accepted. It is true that in a case where there is

difference of opinion among the Judges of the High Court,

the power of this Court under Article 136 is wide enough to

test the correctness of the conclusion reached by the

differing learned Judges as pointed out by this Court in Dr

Prem Chand Tandon case. This proposition is

unexceptionable but this Court had no occasion in that case

to consider the scope of sub-section (2) of Section 98. The

language employed in sub-section (2) is imperative and in

mandatory terms. The object appears to be that on a

question of fact when there is a difference of opinion, the

view expressed by the court below, in the absence of a

majority opinion, needs to be given primacy and confirmed.

When such is the animation, this Court cannot enlarge the

scope of the controversy by itself examining the correctness

of the finding of fact and decide which view of the two is

correct. This would be in direct negation of the legislative

mandate expressed in sub-section (2) of Section 98 of the

CPC.”

46. From perusal of the above quoted paragraphs in the

decision given in Tej Kaur (supra) it is manifest that this

Court considered the procedure to be adopted as contemplated

under Section 98 of the Code and held that for those courts,

the procedure of which is governed by Letters Patent, the

power has been expressly reserved by Sub section (3) of

Section 98. Hence, in the instant case the procedure provided

in the Letters Patent of the High Court shall prevail.

42Page 43

47. Reference has also been made to the case of P.V.

Hemalatha (supra) where the judges in appeal constituting a

Division Bench pronounced two separate judgments wherein

they differed in almost all the issues arising in the case. A

point was raised that since the judges comprising the Division

bench delivered two separate judgments and have not

identified the difference on any point of law, the decree of the

court below is liable to be confirmed in terms of Section 98(2)

of the Code. This Court held that in such cases the procedure

is to be adopted as contemplated under Section 98 of the Code

having regard to the fact that the provisions of Clause 36 of

Letters Patent of the Madras High Court is not applicable.

This Court held:-

“17. Admittedly, the High Court of Kerala is a newly

constituted court for the newly formed State of Kerala in

1956 and governed by the Kerala Act. The said High Court

does not have any Letters Patent — it being not a Chartered

High Court continuing from the British period. In such a

situation, it is submitted that the learned Judges were

perfectly justified in giving effect to the provision of subsection

(2) of Section 98 of the Code and coming to the

conclusion that because of the two different judgments

passed by them the decree of the subordinate court was

43Page 44

liable to be confirmed. On behalf of the respondent very

strong reliance has been placed on a two-Judge Bench

decision of this Court in the case of Tej Kaur v. Kirpal Singh

in which in a similar situation the Supreme Court held that

the provision of sub-section (2) of Section 98 would be

attracted and in view of the two conflicting judgments passed

by two Judges who differed on issues of fact, the judgment of

the subordinate court is liable to be confirmed.

35. We have reached the conclusion as stated above that

clause 36 of the Letters Patent of the Madras High Court on

“practice and procedure” and “powers of Judges” is not

applicable to any part of the new territory of the State of

Kerala and to the new High Court of that State. Law with

regard to the “practice, procedure and powers of Judges” as

contained in the Kerala Act, would be applicable uniformly to

all the territories now forming part of the new State of Kerala

and the High Court established for it. We have also held even

on assumption that Section 23 of the Travancore-Cochin Act

is saved under Section 9 of the Kerala Act that since the said

Kerala Act is a “general law”, it has to give place to Section

98 of the Code of Civil Procedure which is a “special law”

applicable to civil appeals arising from civil suits.”

48. In the case of Pankajakshi (Dead) Through Lrs. and

Others (supra), this Court followed the earlier two decisions in

Tej Kaur and P.V. Hemalatha since the practice and

procedure of Letters Patent was not applicable.

49. A comparative study of Section 98 CPC vis-à-vis clause

36 of the Amended Letters Patent of the Andhra Pradesh High

Court will reveal that while Section 98 provides that in a case

44Page 45

where the Judges comprising the Bench differ in opinion on

point of law, they may state the point of law upon which they

differ and the appeal shall be heard upon that point only by

one or more of the other Judges, such point shall be decided

according to the opinion of the majority of the Judges.

Whereas Clause 36 of the amended Letters Patent provides

that in a case the Division Court exercising its original or

appellate jurisdiction hears the appeal and the Judges are

divided in opinion as to the decision to be given on any point,

such point shall be decided according to the opinion of

majority of Judges. If the Judges are equally divided they

shall state the point upon which they differ and the case shall

then be heard on that point by one or more of the Judges and

the point shall be decided according to the opinion of majority

of Judges who have heard the case including those who first

heard it.

50. Section 98(3) of the Code was added in 1928 by the

repealing amending Act (18 of 1928). The amended Sub-

45Page 46

section (3) of Section 98 was considered by a Full Bench of the

Madras High Court in Dhanaraju vs. Motilal Daga and

Another, AIR 1929 (Mad.) 641 (F.B.). The Division Bench of

the High Court of Patna in the case of Bokaro and Ramgur

Ltd. vs. State of Bihar, AIR 1966 (Patna) 154, considered the

Pages

Thursday 25 February 2016

What will be effect of death of some of appellants during pendency of appeal?

No comments:

Post a Comment