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IN THE HIGH COURT OF ORISSA AT CUTTACK SA No.256 of 1999 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Juga @Juge @ Jugeswar Bhoi …. Appellant -versus- Thipe Bhoiani & Others …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant -
Legal Reasoning
Mr. A.C. Mohanty, Adv. For Respondent - Mr.U.K. Samal, Adv. CORAM: MR. JUSTICE A.C.BEHERA Date of Hearing :11.01.2024:: Date of Order :19.02.2024 A.C. Behera, J. This 2nd Appeal was heard from both the sides on 11.01.2024 on the sole formulated question as per Order No.12 dtd.18.12.2023, i.e., whether this 2nd Appeal shall abate as a whole for non-substitution of the LRs of the deceased respondent Nos.1, 8, 10 and 13 by the appellant or the abatement of appeal shall be limited to the deceased respondent Nos.1, 8, 10 and 13 only. It appears from the record that, this 2nd Appeal has been preferred 2. against the confirming judgment passed by the 1st Appellate Court in T.A. No.4 of 1995 wherein, the judgment and decree passed by the Trial Court in the suit vide T.S. No.44 of 1983-I has been confirmed. SA No.256 of 1999 Page 1 of 7 {{ 2 }} 3. The appellant of this 2nd Appeal was the defendant No.1 before the Trial Court in the suit vide T.S. No.44 of 1983-I and he was the sole appellant in the 1st Appeal vide T.A. No.4 of 1995. 4. The suit before the Trial Court vide T.S. No.44 of 1983-I was a suit for partition. 5. As per the judgment and decree passed by the Trial Court in the suit vide T.S. No.44 of 1983-I, that suit vide T.S. No.44 of 1983-I was decreed preliminarily for partition on contest against the defendant No.1(appellant of this 2nd Appeal) and ex-parte against the rest of the defendants. 6. According to the judgment and decree passed by the Trial Court in the suit vide T.S. No.44 of 1983-I, the plaintiffs were entitled to get half share from the suit properties and the parties were directed to effect partition by metes and bounds mutually within two months. 7. In that suit vide T.S. No.44 of 1983-I, the respondent Nos.1, 8, 10 and 13 of this 2nd Appeal i.e. Thipe Bhoiani, Jagatram Bhoi, Haldhar Bhoi and Gunjamati Bhoiani were plaintiff No.1(a), defendant Nos.3, 5 and 8. As per the findings and observations made by the Trial Court in T.S. No.44 of 1983-I, the plaintiff No.1(a), defendant Nos.5 and 8 belong to the branch of Kharbuja Bhoi and defendant No.3 belong to the branch of Laban Bhoi According to the genealogy of the plaint. The plaintiff No.1(a) and defendant Nos.3, 5 and 8 were the respondent Nos.1, 8, 10 and 13 in this 2nd Appeal, they (respondent Nos.1, 8, 10 and 13) have expired since the year 2004. For non-substitution of their LRs by the SA No.256 of 1999 Page 2 of 7 {{ 3 }} appellant, as per law, this 2nd Appeal was abated against respondent Nos.1, 8, 10 and 13. Now, the question arises, whether this 2nd Appeal, which has been preferred against the confirming judgment passed in a suit for partition vide T.S. No.44 of 1983-I shall abate as a whole for the abatement of appeal against the respondent Nos.1, 8, 10 and 13 or not? 8. During the course of argument, the learned counsel for the appellant relied upon the ratio of the decision reported in AIR 2003 (SC) 1754, Chandramohan Ramchandra Patil & Others Vs. Bapu Koyappa Patil(dead) through his LRs contending about the abatement of appeal limited to respondent Nos.1, 8, 10 and 13, but not as a whole even for non-substitution of the LRs of the deceased respondent Nos.1, 8, 10 and 13 and argued for keeping the abatement of Appeal limited to the deceased respondent Nos. 1, 8, 10 and 13 only. On the contrary, the learned counsel for the respondents relied upon the ratio of the decisions reported in (i) AIR 1935 Patna 241 Churaman Mahto and others Vs. Bhatu Mahto and others. (ii) (2019) 11 SCC 787 Sunkara Lakshminarasamma Vs. Sagi Subba Raju and others, (2010) 11 SCC 476 Budh Ram and others Vs. Bansi and others contending for abatement of this 2nd Appeal as a whole for non-substitution of the LRs of the deceased respondent Nos. 1, 8, 10 and 13 by the appellant. As per the findings and observations made by the Trial Court in issue No.1, the Trial Court has held that, the suit properties are the joint family properties of the parties i.e. the plaintiffs and defendants including SA No.256 of 1999 Page 3 of 7 {{ 4 }} the deceased respondent Nos.1, 8, 10 and 13 of this 2nd Appeal, for which, the suit properties were held to be liable for partition, wherein, the members of the plaintiffs branch were entitled for half share and the members of other branch, i.e., the branch of Laxman were entitled for half share. 9. When, it has already been held by the Trial Court and as well as by the 1st Appellate Court in their respective judgments and decrees that, the deceased respondent Nos.1, 8, 10 and 13 of this 2nd Appeal (those were the plaintiff No.1(a) and defendant Nos. 3, 5 and 8 in the suit vide T.S. No.44 of 1983-I), are entitled for their respective shares from the joint family suit properties as per the preliminary decree passed in the suit vide T.S. No.44 of 1983-I, then, at this juncture, when this 2nd appeal has already been abated against the deceased respondent Nos.1, 8, 10 and 13 for non-substitution of their LRs by the appellant, then as per law, this 2nd this 2nd Appeal has been Appeal as a whole shall abate. Because, preferred challenging an indivisible decree passed in a suit for partition vide T.S. No.44 of 1983-I. 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, Page 4 of 7 SA No.256 of 1999 {{ 5 }} 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. 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, in case of death of any of them, are required to be represented and absence of anyone of them, 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. Page 5 of 7 SA No.256 of 1999 {{ 6 }} 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. 10. When, this 2nd Appeal vide S.A. No.256 of 1999 has been preferred by the appellant challenging the judgment and decree passed by the Trial Court in a suit for partition vide T.S. No.44 of 1983-I and when, in the judgment and decree of that suit for partition vide T.S. No.44 of 1983-I, the respondent Nos.1, 8, 10 and 13 of this 2nd Appeal (against whom the Appeal has already been abated for non-substitution of their LRs) were allotted with definite shares, 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 decisions, for non-substitution of the LRs of the deceased respondent Nos.1, 8, 10 and 13, 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 i.e., against respondent Nos.1, 8, 10 and 13 then, at this juncture, this 2nd Appeal the co-sharers (co-owners), against their other co-sharers cannot be proceeded with in absence of the SA No.256 of 1999 Page 6 of 7 {{ 7 }} representations of the estates of the deceased co-sharers i.e. respondent Nos.1, 8, 10 and 13. 11. Therefore, it is held that, due to the abatement of the Appeal against the deceased respondent Nos.1, 8, 10 and 13 for the failure of the appellant to bring their legal heirs into the record, this 2nd Appeal would abate in its entirety and the judgment and decree passed by the Trial Court in T.S. No.44 of 1983-I and the confirmation to the same by the 1st Appellate Court in T.A. No.4 of 1995 shall survive. As such, this 2nd appeal is dismissed being abated in its entirety. (A.C. Behera), Judge. Orissa High Court, Cuttack. 19.02.2024,//Binayak Sahoo// Junior Stenographer Signature Not Verified Digitally Signed Signed by: BINAYAK SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 27-Feb-2024 13:47:56 SA No.256 of 1999 Page 7 of 7