NON­REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(s). 8109 OF 2010

GOLI VIJAYALAKSHMI & ORS.     ….Appellant(s)

VERSUS

YENDRU SATHIRAJU(DEAD) BY LRS. & ORS. ….Respondent(s)

WITH

CIVIL APPEAL NO(s). 8110 OF 2010

J U D G M E N T

Rastogi, J.

1. The aforesaid civil appeals arise from the impugned

judgment dated 22nd November, 2005 passed by the High Court

of Andhra Pradesh at Hyderabad in Appeal No. 1146 of 1996(and

cross objections) confirming the judgment and decree passed by

the learned trial Court dated 12th October, 1995 in Original Suit

No. 175 of 1987 whereby the Courts below have inter alia decreed

the suit schedule ‘A’ and ‘B’ properties and have dismissed the

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suit qua schedule ‘C’ property filed by the

respondent(s)/plaintiff(s).

2. When the aforesaid civil appeals were taken up for

adjudication, the respondents/plaintiffs raised a preliminary

objection to the prosecution of the appeals on the ground that the

civil appeals have abated in toto.  It is to be further noticed that

the defendant no. 2 Goli Sathiraju died on 21st  February, 2006

and his legal heirs have not chosen to come on record and when

the matter was listed before the Chamber Judge, it was observed

vide Order dated 24th July, 2009 as follows:­

“IA No. 2 in SLP(C ) No. 9401/2006 is for deletion of petitioner no. 2 who is stated to have died on 21/2/2006 and his LRs have not chosen to come on record.  Hence, the matter abates insofar as petitioner no. 2 is concerned.  I.A. No. 2 is allowed.

Petitioner  no.  2 in  SLP(C  )  No.  9401/2006  is the respondent no. 2 in the connected SLP(C ) No. 19919/2006.   SLP(C ) No. 9401/2006 insofar as petitioner no. 2 is concerned stands abated.   In view thereof, petitioner is permitted to delete respondent no. 2 from the array of parties.  I.A. No. 3 is allowed.”

3. When the matter came before  the  Court on 10th May, 2018,

taking note of the view expressed  by the Chamber Judge dated

24th July, 2009, it was observed that in view of the appeal stood

abated qua  the appellant no. 2, therefore, the  appeal in entirety

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stands abated.  Learned counsel for the appellants sought time to

examine the issue regarding the abatement of the

proceedings in view of the fact that the appeal stood abated qua

appellant no. 2 in terms of order dated 24th July, 2009.

4. The seminal facts which are relevant for the present

purpose are that the original plaintiff Yendru Sathiraju filed O.S.

No. 175 of 1987 before the learned trial Court praying inter alia

declaration of title in respect of schedule ‘A’,’B’ & ‘C’ properties

and for recovery of possession from the defendants/appellants.

The prayer is as follows:­

“18. Plaintiff therefore prays that the Hon’ble Court may be pleased to pass a decree in his favour:

a) Declaring his absolute title to the plaint A, B and C schedule properties and for recovery of possession thereof after evicting the defendants there from;

b) Granting a mandatory injunction directing the  defendants to restore  opening in the northern compound wall in between plaint B and C schedule properties and put up the doorway in its former position;

c) for costs of the suit; and

d) for such other relief’s as may deem fit and proper under the circumstances of the case.”

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5. Written statement came to be filed by the defendant no. 1

which was adopted by the defendant nos. 2 and 3 before the trial

Court.   Although an averment was made in the written

statement that the suit schedule ‘A’ property fell to the share of

defendant no.  1 and the Suit  schedule ‘B’  property fell to  the

share of defendant no. 2.   The trial Court after adjudicating the

matter was pleased to pass a partial decree declaring the title and

ownership of the plaintiff/respondent to Suit schedule ‘A’ and ‘B’

properties and directing the defendants/appellants to deliver

possession of the same to the plaintiff/respondent.   Against

schedule ‘C’ property, the claim of the plaintiff/respondent was

rejected vide judgment and decree dated 12th October, 1995.  The

decree passed by the trial Court is as under:­

“In the result, the suit is decreed in part with proportionate costs (1) declaring the title and ownership of the plaintiff to plaint ‘A’ and ‘B’ schedule properties (2) directing the defendants to deliver possession of the plaint ‘A’ and ‘B’ schedule properties to the plaintiff (3) granting a  mandatory injunction directing the defendants to restore the door­way in the compound wall situated to between plaint  ‘A’ and  ‘B’ schedule properties; and (4) directing the defendants to pay future profits from the date of filing of the suit till the date of delivering possession of the plaint ‘A’ and ‘B’ schedule properties to the Plaintiff, the quantum of which has to be ascertained in separate proceedings on an application by the plaintiff.  Rest of the suit claim is dismissed.”

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6. The defendants/appellants preferred Appeal no. 1146 of

1996 before the High Court (and cross objections were filed by

the  plaintiffs/respondents  herein),  both  came to  be  dismissed

and a judgment and decree of the trial Court came to be

confirmed by the High Court vide judgment dated 22nd November,

2005.

7. It reveals from the record  that the defendants/appellants

jointly filed SLP(C ) No. 9401 of 2006 before this Court on 30 th

March, 2006.   At the same time, plaintiffs/respondents also

preferred SLP (C ) No. 19919 of 2006 against the rejection of suit

schedule ‘C’  properties.  The  factum of the death of  appellant

no. 2 was brought to the notice of this Court on 7th May, 2007

and learned  counsel sought time to  bring  on  record  his legal

representatives but on failure to bring on record the legal

representatives of the appellant no. 2, the Chamber Judge vide

order  dated 24th  July,  2009 pleased  to treat the  special leave

petition/appeal as abated so far as appellant no. 2 is concerned

and this Court vide order dated 6th September, 2010 rejected the

application filed to implead the legal representatives of appellant

no. 2 as proforma respondents.   Further, it was specifically

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observed that the consequence of the abatement of the appeal

qua the appellant no.  2 was left open for consideration at the

time of final hearing of the appeal.

8. This Court granted leave and accordingly the special leave

petitions were converted into Civil Appeal Nos. 8109 and 8110 of

2010  vide  order  dated  6th  September,  2010.  This  Court vide

order dated 14th  August, 2018 was pleased to dismiss the

application  for  condonation of  delay  in  bringing on record the

legal representatives of the appellant no. 2 as also the application

for bringing the legal representatives on record on account of the

inordinate delay with liberty to raise the issue of abatement of

appeal at the time of hearing of the appeal.

9. To examine the question of abatement of appeals, it may be

relevant to take note of the fact that initially the suit was filed by

the plaintiffs/respondents for declaration of title in respect of 3

schedule properties ‘A’, ‘B’ and ‘C’ and the trial Court as well as

the High Court have partly decreed the suit holding the

entitlement of the title of the plaintiffs/respondents in reference

to suit schedule ‘A’ and ‘B’ properties.   All the three

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defendants/appellants to the suit are real brothers and written

statement was filed by the first defendant/appellant and adopted

by other two defendants/appellants set up a rival title to the suit

schedule properties by claiming to have succeeded to them from

one common ancestor  Smt.  Gole  Sattemma(foster  daughter of

Yendru Kannayya­father of the plaintiff).

10. Taking note of the pleadings of the parties and the claims

set  up  by the  defendants that they  are  co­owners  of the  suit

schedule properties(each being entitled to an equal and

undivided  share),  having  derived their title from one common

ancestor and are similarly placed and identically situated.

11. From the factual backdrop of matter, what has emerged is

that the judgment and  decree passed  by the trial  Court has

become  final  qua  the  appellant  no.  2(defendant  no.  2)  on the

appeal stood abated qua him vide order dated 24th  July, 2009

passed by this Court.

12. The submission of the learned counsel for the

respondents/plaintiffs is  to permit  the remaining appellants to

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prosecute the civil appeals and, in the event, they were to

succeed, there would be two mutually inconsistent/contradictory

decrees inasmuch as the suit has already been decreed qua the

appellant no. 2(defendant no. 2) on the one hand and the suit

would stand dismissed qua appellant nos. 1 & 3(defendant nos. 1

& 3) on the other and without clear demarcation and delineation

of the properties(which has not yet happened), it would be

impossible  for the plaintiffs/respondents to enforce decree qua

the defendant no. 2 without impinging on the rights of the

defendant nos. 1 and 3(appellant nos. 1 & 3).

13. To counter the submission, learned counsel for the

appellants submit that the appellant nos. 1 & 3(defendant nos. 1

& 3) are the real brothers of appellant no. 2 and they have their

distinct shares and rights regarding title  in the suit properties

which they had inter se divided and settled amongst themselves

and was the subject matter of the suit which was decreed by the

trial Court dated 12th  October, 1995.   Learned counsel  further

submits that the judgment of the trial Court recognises separate

and distinct rights of the appellant nos. 1, 2 & 3(defendant nos.

1, 2 & 3) and the High Court while dismissing the appeal filed by

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the  appellants  and  the  plaintiffs/respondents  having  preferred

cross  objections with  regard  to  non­grant  of reliefs  prayed  for

declaration of title of schedule ‘C’ properties itself makes it

evident that the defendants had their own distinct and

substantive rights in the schedule ‘A’, ‘B’ and ‘C’ properties as

claimed in the plaint especially in view of the fact that both the

appellants and the respondents herein having preferred their

respective  appeals  before the  High  Court  and  also  before this

Court and in support of his submission placed reliance on the

judgment of this Court in  Sardar Amarjit Singh Kalra(Dead)

by LRs and Others Vs. Pramod Gupta(Smt)(Dead) by LRs and

Others reported in 2003(3) SCC 272.

14. For the sake of repetition, learned counsel for the appellants

further submits that appellant nos. 1 & 3(defendant nos. 1 & 3)

had a distinct and separate right which cannot be said to have

extinguished on account on non­substitution of the legal

representatives of appellant no. 2 and their right to substitution

could not be taken away by taking note of technicalities and this

Court has ample power under Order 41 Rule 4 of Code of Civil

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Procedure(hereinafter being referred to as “CPC”) to do

substantial justice.

15. In this factual background, it will be apposite to first take

note of the principles laid down in respect of abatement of

appeals.  Order 22 Rule 4(3)  CPC specifies that a suit/appeal

shall abate as against the deceased defendant where no

application is made to bring on record the legal representatives of

the deceased defendant  within the time stipulated.   Further,

Order 22 Rule 9 CPC specifies the effect of abatement inasmuch

as it is clarified that no fresh suit is maintainable in respect of

the same cause of action.

16. The primary role of the Court is to adjudicate the dispute

between the parties and to advance substantial justice.

Inasmuch as the abatement results in denial of hearing on the

merits of the case, the provision of abatement has to be

construed within the strict parameters of law.  Abatement of suit

for failure to move an application for bringing the legal

representatives on record within the prescribed period of

limitation is by operation of law but once the suit has abated as a

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matter of law, though there may not have been passed on record

a specific order dismissing the suit as abated, yet the legal

representatives proposing to be brought on record or any other

applicant proposing to bring the legal representatives of the

deceased party on record would seek for the setting aside of an

abatement.   

17. The question arises in reference to the effect of abatement

qua the appellants(plaintiffs or defendants), as the case may be,

where the decree is joint and indivisible, the appeal against the

other  defendants  will  be  proceeded  with  and in the  event  of

appeal to succeed, there will be two mutually

inconsistent/contradictory decrees and more  particularly  when

the suit has already been decreed qua one defendant and the suit

would stand dismissed qua the other defendants, in such a given

situation, tests have been laid down by this Court to determine

as to whether or not to proceed with the appeal.    

18. This Court while adverting to Order 22 Rule 4 CPC against

the other respondent in  State of Punjab Vs.  Nathu Ram   AIR

1962 SC 89 observed as under:­

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“6. The question whether a Court can deal with such matters or not, will depend on the facts of each case and therefore no exhaustive statement can be made about the circumstances when this is possible or is not possible. It may, however, be stated that ordinarily the considerations which weigh with the Court in deciding upon this question are whether the appeal between the appellants and the respondents other than  the  deceased  can be  said to  be  properly constituted or can be said  to have all the necessary parties for the decision of  the controversy before the Court. The test to determine this has been described in diverse forms. Courts will not proceed with an appeal (a)  when the success  of the appeal  may  lead to the Court's coming to a decision which be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the Court's passing a decree which will be contradictory to the decree which had become final with respect to the same  subject  matter  between the  appellant  and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the Court and  (c)  when the decree against the surviving respondents, if the appeal succeeds, be ineffective, that is to say, it could not be successfully executed.”

19. The exposition of the Constitution Bench in  Sardar

Amarjit Singh Kalra (Dead) by LRs and others  (supra) is as

under:­

“34. 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.

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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 vis­a­vis 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 self­destructive and that the enforcement of one would negate or render impossible the enforcement of the other.”

20. It  was  further  considered  in  Budh Ram and Others  Vs.

Bansi and Others  2010(11) SCC 476 and the principle,

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therefore, emerges is to test whether the judgment/decree passed

in the proceedings vis­à­vis the remaining parties would suffer

from the vice of contradictory or inconsistent decrees inasmuch

as the two decrees  are incapable  of enforcement  or  would  be

mutually self­destructive and that the enforcement of one would

negate or render impossible the enforcement of the other.

21. Applying  the aforesaid principles, the  facts of the  instant

cases  on hand clearly  manifest that the judgment  and decree

passed by the trial Court became final qua appellant no.

2(defendant no. 2) upon abatement of the appeal qua him vide

order  dated  24th  July, 2009.   If this  Court  would  permit the

remaining appellants to prosecute the appeals and, in the event

they  were to succeed, indisputedly, there  would be  mutually

inconsistent/contradictory decrees inasmuch as the suit has

already been decreed qua appellant no. 2(defendant no. 2) on the

one hand and the suit would stand dismissed qua appellant nos.

1 & 3(defendant nos. 1 & 3) or decreed against them in reference

to schedule ‘C’ property and not against appellant no.

2(defendant no. 2) due to dint of cross appeal filed by the

plaintiff.   

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22. If the instant appeals were to be allowed, the same would

result in a situation where the enforcement of the two decrees

would be in executable and the enforcement of one would negate

or render impossible the enforcement of the other and to further

simplify, the plaintiffs/respondents would be entitled to the share

of the appellant no. 2(defendant no. 2) in the suit schedule ‘A’

and ‘B’ properties and there is no way he could enforce the same

without negating the enforcement of the other decree viz.

dismissal of the suit qua appellant nos. 1 & 3(defendant nos. 1 &

3) since the suit schedule properties each constitute a single unit

and the same has not yet been demarcated and/or divided

amongst the defendants and without such clear demarcation and

delineation of the properties, indisputedly,  which  has  not yet

happened, it would be impossible for the plaintiffs/respondents

to enforce decree qua the appellant no. 2(defendant no. 2)

without impinging on the rights of the appellant nos. 1 &

3(defendant nos. 1 & 3).

23. The submission of learned counsel for the appellants that

even if the appeal stood abated qua the appellant no. 2, the other

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appellants would be entitled to prosecute the appeals relying on

the principle of Order 41 Rule 4 & 33 CPC.  Suffice it to say that

once the appeal stood abated against the appellant no.

2(defendant no. 2) and the decree which stands confirmed qua

the appellant no. 2(defendant no. 2) cannot indirectly be

reopened to challenge at the behest of persons claiming through

him by relying on provisions of Order 41 R 4 & 33 CPC as prayed

for.   

24. Learned counsel for the appellants has  made efforts to

persuade us that the plaintiff himself has acknowledged in the

plaint regarding the internal division/demarcation of the suit

schedule properties, the submission appears to be factually

incorrect as nowhere in the plaint, the plaintiff has acknowledged

any such internal division/demarcation of the suit schedule

properties.   Although there was a statement made by the

appellants/defendants in para 11 of the written statement that

the schedule ‘A’ property has fallen to the share of the appellant

no. 1(defendant no. 1) and schedule ‘B’ property has fallen to the

share of appellant no. 2(defendant no. 2) but the assertion has no

foundation/basis and there  was  no issue framed  by the trial

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Court and admittedly no finding has been rendered in this

regard.   In the absence of such finding being rendered by the

trial Court, the self­serving assertion made by the

defendants/appellants cannot be an evidence of the fact that the

suit schedule properties have been divided and demarcated

among the defendants/appellants.

25. After going through the decree of the trial Court and

confirmed by the High Court in appeal, of which a reference has

been made by us in detail and taking note of the tests laid down

by  this  Court, in  our  considered view both  the  appeals  stand

abated in toto.

26. We find substance in the preliminary objection raised by the

respondents and both the appeals stand abated and accordingly

dismissed.

27. Pending application(s), if any, stand disposed of.  

…………………………..J. (A.M. KHANWILKAR)

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…………………………..J. (AJAY RASTOGI)

New Delhi April 26, 2019

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