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IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No.232 of 2002 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Md. Abdul Talab & Others …. Appellants -versus- Md. Idris & Others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants -
Legal Reasoning
Mr. B. Das, Adv. appearing on behalf of Mr. N.C. Pati, Adv. For Respondents - Ms. S. Mohanty, Adv. appearing on behalf of Mr. R.K. Mohanty, Sr. Adv. CORAM: MR. JUSTICE A.C.BEHERA Date of Hearing :19.02.2024:: Date of Order:15.03.2024 A.C. Behera, J. This 2nd Appeal was heard from both the sides on 19.02.2024 on the sole formulated question as per Order No.5 dtd.09.01.2024, i.e., whether due to non-substitution of the LRs of the deceased appellant Nos.1 & 6, the entire Appeal shall abate or the abatement will be limited to the deceased appellant Nos.1 & 6 only? 2. It appears from the record that, this 2nd Appeal vide R.S.A. No.232 of 2002 has been preferred against the Judgment and Decree for partition of the suit properties passed by the 1st Appellate Court in T.A. No.100 of RSA No.232 of 2002 Page 1 of 6 {{ 2 }} 1982 reversing the Judgment and Decree of the dismissal of the suit for partition vide O.S. No.124 of 1980-I passed by the Trial Court. 3. The deceased appellant Nos.1 and 6 of this 2nd Appeal were the defendant Nos.2 and 7 in the suit vide O.S. No.124 of 1980-I and they were the respondent Nos.2 and 7 in the 1st Appeal vide T.A. No.100 of 1982. 4. As per the preliminary decree passed by the 1st Appellate Court in T.A. No.100 of 1982, the deceased defendant Nos.2 and 7 in the suit vide O.S. No.124 of 1980-I were entitled for definite shares in their favour. 5. The appellant Nos.1 and 6 (those were the defendant Nos.2 and 7 in the suit vide O.S. No.124 of 1980-I) have expired since long, but no step has been taken on behalf of the appellants to substitute their LRs. So, due to non-substitution of the LRs of the deceased appellant Nos.1 and 6 (those were the defendant Nos.2 and 7 before the trial court in the suit vide T.S. No.124 of 1980-I and respondent Nos.2 and 7 in the 1st Appeal vide T.A. No.100 of 1982) within the period of limitation, this 2nd Appeal vide R.S.A. No.232 of 2002 was abated as per law against the appellant Nos.1 and 6. RSA No.232 of 2002 Page 2 of 6 {{ 3 }} 6. Now, the question arises, whether this 2nd Appeal vide R.S.A. No.232 of 2002 shall abate as a whole or not due to the abatement of appeal against the appellant Nos.1 & 6 (those were the defendant Nos.2 and 7 before the trial court in the suit vide T.S. No.124 of 1980-I and respondent Nos.2 and 7 in the 1st Appeal vide T.A. No.100 of 1982)? 7. As per the Judgment and Decree passed by the 1st Appellate Court in T.A. No.100 of 1982, the suit properties are the joint and undivided properties of the parties, for which, the suit properties were liable for partition, wherein the deceased appellant Nos.1 and 6 were entitled to get their shares like their co-sharers in that suit. 8. When, the deceased appellant Nos.1 and 6 were entitled for their respective shares from the joint and undivided suit properties of the suit vide O.S. No.124 of 1980-I and when, this 2nd Appeal has already been abated against the deceased appellant Nos.1 and 6, then, as per law, for non-substitution of the LRs of the deceased appellant Nos.1 and 6 by their co-sharers in the appeal, this 2nd Appeal shall abate as a whole. Because, this 2nd Appeal has been preferred challenging an indivisible decree passed in a suit for partition vide O.S. No.124 of 1980-I. RSA No.232 of 2002 Page 3 of 6 {{ 4 }} On this aspect, the propositions of law has already been clarified by the Hon’ble Courts and Apex Court in the ratio of the following decisions:- (i) AIR 1935 (Patna) 241— Churaman Mahto and others Vs. Bhatu Mahto and others—This is an appeal by the plaintiffs, whose suit for partition was dismissed on the ground that, the village was partitioned by some private arrangement. During the pendency of the respondent No.21(who was defendant No.21 in the suit) died and no substitution of his heir having been made within the time allowed by the law, the appeal stood abated against him. the appeal, Now the question is, whether, The appeal can proceed against the remaining respondents? Held, it being a partition suit, no decree can be passed for partition in the absence of a single co-sharer of the village. The appeal has abated in its entirety. (ii) (2012) 2 Maharastra law journal 741 (Bombay)— Ramrao Joti Godase and others Vs. Kisan Joti Godase and others (Paras11&12)—CPC, 1908—Order 22 Rules 4 and 9—Suit for partition—Appeal arose out of a suit for partition and separate possession. Different shares had been allotted by the Trial Court to the plaintiff and defendants. Defendant Nos.3 and 4 were aggrieved by the shares allotted and filed an appeal along with other defendants. Defendant Nos.3 & 4 died during the pendency of the civil appeal in the District Court. Heirs of the deceased appellants were not brought on record. Held, the entire appeal and cross objection before the District Court had abated. (iii) 2014(4) Civil Court cases 60 (Patna), and AIR 2014 (Patna) 148—S.M. Kalim Vs. S.M. Sarfudin—(Para-32)— CPC, 1908—Order-22 Rules 3 and 9—non-substitution of LRs—Effect of—suit for partition—one of appellant died during pendency of Appeal—LRs not substituted—appeal as a whole becomes incompetent. RSA No.232 of 2002 Page 4 of 6 {{ 5 }} In a suit for partition, each and every co-sharer/co- owner is in the position of plaintiff as also defendant— For an effective decision of partition suit/appeal, all the parties/ co-owners or their heirs and legal representatives are to be noticed. So, in case of death of any of them, the deceased party is required to be represented and absence of the representatives of the deceased party, it would make the suit/appeal incompetent. Where claim of the parties with respect to the suit properties is indivisible or inseparable, in that case, on account of non-substitution of heirs of any of the parties the suit/appeal as a whole becomes incompetent and is liable to be dismissed. (iv) 2021(2) Civil Court Cases 245 (SC) and 2021 (1) Apex Court judgments 645 SC and 2021(1) OLR 601 (SC) and (2021) 4 SCC 246—Venigalla Koteswaramma Vs. Malampati Suryamba and Ors(Paras 42.1 & 46)—CPC, 1908—Order 22 Rule 4 (3)—partition—death of one of respondents—non-impleadment of LRs—Appeal abated against one respondent—Appeal against other co-sharers of property cannot be proceeded in absence of representation of estate of one of co-sharers. (v) AIR 1965 (SC) 1531—Union of India Vrs. Shree Ram Bohra—Para-16—when the decree in favour of the respondents is joint and indivisible, the appeal against the respondents other than the deceased respondent cannot be proceeded with, if appeal against the deceased respondent has abated. 9. When, this 2nd Appeal vide R.S.A. No.232 of 2002 was preferred by all the appellants including the deceased appellant Nos.1 and 6 challenging the judgment and decree for partition of the suit properties passed by the 1st Appellate Court in T.A. No.100 of 1982 and when, as per the said Judgment and Decree of that partition, the deceased appellant Nos.1 and 6 were entitled to be allotted with definite shares each in their favour, then, at this juncture, in view of the principles of law enunciated by the Hon’ble Courts and Apex Court in the ratio of the aforesaid Page 5 of 6 RSA No.232 of 2002 {{ 6 }} decisions, for non-substitution of the LRs of the deceased appellant Nos.1 and 6, this 2nd Appeal as a whole has become incompetent under law and the same is liable to be dismissed. Because, as per the dictums of the Hon’ble Courts and Apex Court referred to supra, when, this 2nd Appeal (which has been preferred against the judgment and decree passed in a suit for partition) has already been abated against some of the co-sharers (co-owners), i.e., against the appellant Nos.1 and 6, then, at this juncture, this 2nd Appeal against their other co-sharers cannot be proceeded in absence of the representations of the estates of the deceased co-sharers i.e. deceased appellant Nos.1 and 6. 10. Therefore, it is held that, due to the abatement of the Appeal against the deceased appellant Nos.1 and 6 for the failure of their co- sharers in the appeal to bring their legal heirs into the record, this 2nd Appeal would abate in its entirety and the judgment and decree passed by the 1st Appellate Court in T.A. No.100 of 1982 shall survive. As such, this 2nd appeal is dismissed being abated in its entirety. (A.C. Behera), Judge. Orissa High Court, Cuttack. 15.03.2024,//Rati Ranjan Nayak// Senior Stenographer Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India Date: 15-Mar-2024 16:30:30 RSA No.232 of 2002 Page 6 of 6