ZAFFAR HUSSAIN MIRZA, J.-- This is an appeal by special leave of this Court from a judgment of a learned Single Judge of the Lahore High Court dated 13th May, 1975, whereby the regular second appeal filed by the appellants herein was dismissed on the merits, as well as having abated on account of non-joinder of the legal representatives of one of the appellants before the High Court.
2. The facts are that the agricultural land described in the plaint measuring 1459 kanals 15 marlas was originally possessed and owned by one Ghaus who was the common ancestor of the parties.
Ghaus on his death left him surviving four sons, namely, Karam, Alam, Saadat and Mehram who inherited the land in dispute under the Customary Law in equal shares. Alam, one of the sons of Ghaus then died issueless. On 4th August, 1877, a mutation of inheritance was sanctioned in respect of his share. The case of the respondents who are the descendants of Karam and Saadat, is that the entire share of Alam was entered in the name of Mehram alone by mistake by the attesting officer, with the result that in the revenue record Mehram was shown as the owner of the land in dispute to the extent of ) share, while the remaining half share was entered in the names of Karam and Saadat equally. The revenue record continued to remain in this position until 1957, when consolidation operations were started in the village. The respondents preferred a claim to the extent of 2/3 share in the land in dispute but on account of the entries in the revenue record their claim was rejected. Upon this the descendants of Karam brought a suit for declaration that they along with the descendants of Saadat were entitled to 2/3 share in the suit land and also prayed for consequential relief by way of rectification of the revenue record.
3. The suit was contested by the appellants alone who are the descendants of Mehram. The trial Court framed several issues on the pleadings of the parties but it is only relevant to state that the suit was dismissed on the ground of limitation as being barred by time. The respondents challenged the decision of the trial Court in a first appeal which was allowed by the learned Additional District Judge, who reversed the finding on the point of limitation and further held that Saadat and Karam were also entitled to inherit the property left by Alam along with Mehram. The suit of the respondents was decreed in these terms by the first appellate Court.
4. Haji and others, the successors-in-interest of Mehram son of Ghaus, being aggrieved by the judgment of the Additional District Judge, then filed a second appeal in the Lahore High Court, Lahore. During the pendency of the said appeal Haji died, but the application for impleading his legal representatives was not made within time, with the result that so far as Haji was concerned the appeal stood abated. The question raised before the High Court, in the circumstances, was whether the abatement of the appeal qua Haji appellant before the High Court, rendered the whole appeal to be improperly constituted and liable to be dismissed on that account. It was contended on behalf of the appellant that the share of Haji in the joint holding being ascertainable and savable from that of the co-appellants, the appeal did not suffer from any infirmity in absence of his legal representatives. The learned Single Judge, however, did not accept this argument on the ground that the decree obtained by the respondent was indivisible, inasmuch as, it purports to hold that the mutation sanctioned in 1877 on the death of Alam was wrong and as such the subsequent entries existing in the revenue record and based on that mutation are also erroneous.
It was further observed that the decree also declared that the plaintiffs/ respondents and defendants 4 to 6 heirs of Karam and Saadat are the owners of 2/3 shares, while the present appellants including deceased Haji are the owners of the 1/3 share. In these circumstances, the learned Single Judge took the view, that continuing the appeal in absence of the legal representatives of deceased appellant Haji would result in two mutually destructive findings which cannot be recorded in the same suit, with the result that it was not possible to hold that the appeal was properly constituted. The learned Judge also considered the case on merits and affirmed the finding of the learned Additional District Judge that on the death of Alam in 1877, his share in the joint holding was wrongly mutated exclusively in favour of Mehram,which according to the customary law devolved on the other brother Karam and sons of Saadat along. With Mehram. The contention advanced on behalf of the appellants that the suit of the respondents was barred by limitation was also found untenable. On these findings the learned Single Judge in the High Court dismissed the appeal by his judgment dated 13th May, 1975.
5.Leave was granted by this Court against the aforesaid judgment of the High Court to consider the following contentions:- (i)Having regard to the amendments introduced by the Law Reforms Ordinance in Order XXII of the Code of Civil Procedure, the appeal before the Highcourt did not at all abate in absence of legal representatives of Haji deceased and could proceed to its conclusion.
(ii)At any rate the High Court was wrong in holding that the entire appeal had abated in the absence of legal representatives of Haji deceased who was only one of the appellants on the record.
6.As regards the first point raised in this appeal, the law seems to be settled inview of the decision of this Court in Sardar Noor Hussain v. Chief Settlement Commissioner etc. (PLD 1983 SC 62), in which the effect of the amendments made in Order XXII, rule 4, C . P. C . By the Law Reforms Ordinance, 1972, was considered and it was held that abatement having already taken place much before coming into force of the amendments, which were not retrospective in operation, the amended procedural provisions were not applicable to E such a case. It is, therefore, clear that the law as it stood prior to the amendments effected by the Law Reforms Ordinance, 1972, will determine the consequences that flow from the non-joinder of the legal representatives of deceased appellant Haji.
7. Coming to the second point which is the main legal question for determination in this appeal, it has been urged on behalf of the appellants that the appeal before the High Court did not abate in totality but only abated qua the deceased appellant Haji. On the other hand, on behalf of the respondents it was contended that no decision on merits could be given in the second appeal, which on account of the dismissal of the same qua one of the co-plaintiffs, became improperly constituted and had to be dismissed on that account forthwith.
8.Order XXII rule 3 CPC (hereinafter referred to as the Code), deals with theprocedure in case of death of one of the plaintiffs or of the sole plaintiff during the pendency of the suit. By virtue of rule 11 of the said Order, the provisions of the rule are applicable to appeals, in case one of the appellants or the sole appellant dies during the pendency of the appeal. The Code does not provide for the abatement of a suit or an appeal as a whole, in case of the death of one of the plaintiffs or appellants. Under rule 3 where within the time prescribed by law no application is made for substitution of the deceased appellant, the appeal abates, so far as the deceased appellant is concerned. The question whether the abatement of the appeal in regard to the deceased appellant will result in the entire appeal being dismissed depends upon whether in the absence of the legal representatives of the deceased appellant the appeal will be improperly constituted. It has been pointed out in a number of cases that in case of several appellants, the death of one will result in the abatement of the appeal so far as he is concerned, in the first instance, but the effect of such abatement on the whole appeal or on the rights of other parties, will depend upon the nature of the rights or relief claimed in the appeal. This question has often presented difficult problems before the Courts and there is divergence of opinion on the principles which governed the question whether the appeal can be proceeded with in spite of partial abatement thereof. Order XXII rule 3 of the Code does not provide for the abatement of the appeal as regards the other appellants and Order I rule 9 of the Code clearly provides that no suit shall be defeated by reason of the misjoinder or non-joinder of the parties but the Court may, deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.
From this it follows that if the Court can deal with the matter in controversy so far as regards the rights and interests of the appellants and the respondents other than the deceased appellant, it has to proceed with the appeal and decide it. However, in case it is not possible for the Court to deal with such matter, it will have to refuse to proceed further with the appeal and will be obliged to dismiss it. In this regard, as already stated, several principles have been laid down as tests to determine whether the appeal would be properly constituted and can be said to have all the necessary parties for the decision of the controversy before it. Generally speaking these tests are, firstly whether the success of the appeal will lead to a decision which will be in conflict with the decision between the deceased appellants and the respondents, with the result that the Court would be required to pass a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the deceased appellant and the respondents; secondly whether the surviving appellants could not have brought the appeal for the necessary relief against the respondents, the deceased appellant not joining them in the appeal, and thirdly whether the decree that may be passed in the appeal in favour of the surviving appellants, will be ineffective, that is to say, it could not be successfully executed.
9. In view of the aforesaid. Tests laid down by the Courts there appears to be consensus of judicial opinion that if the right or relief claimed in the appeal, as originally instituted, is an indivisible one existing in all the appellants jointly or in or against all the appellants jointly, the whole appeal will fail by reason of an abatement with respect to one of them. Conversely if such right or relief is divisible or exists individually in each, an abatement with respect to one or some alone will not cause the entire appeal to fail. In case of the death of one of the appellants, who was a plaintiff in a pre-emption suit, this Court in Mst. Said Begum and others v. Nur Ahmad and others (PLD 1978 SC 133), postulated the test that the suit or appeal abates as a whole or only in part on determining the question whether in the first instance the suit could have been instituted and prosecuted with the deceased plaintiff left out. This discussion would be incomplete without reference to a brilliant judgment, if I may say so with respect, by B. Z . Kaikaus, J. For this Court in Wali and others v . Manak Ali and others (PLD 1965 SC 651). In this judgment, which construed the import of Order XXII, rule 4, CPC, it was laid down that unless under some provisions of law the adjudication of rights and obligations as between the surviving parties to the appeal is barred, there will be no impediment in proceeding with an appeal in which the appeal has abated in respect of one of the parties on account of non-joinder of his legal representatives. Instances of such suits where a single adjudication is required by the law quoted in the judgment were the suit for partition and a suit for accounts of partnership, in which all co-sharers or all the partners as the case may be, would be necessary parties and abatement of the appeal in regard to one such parties would result in dismissal of the entire appeal. This judgment also upheld another criterion for decision of such a question, namely, whether separate suits could have been brought against the deceased party and the surviving party. The judgment further elucidated the test whether the decision on merits of the appeal in a case in which the appeal has abated partly, would result in inconsistent decrees. It was held that there was no bar in a suit relating to immovable property, for the Court to pass inconsistent decrees in respect of the same property relating to different parties to the same suit or indeed in respect of the same property as between different parties. This conclusion was based on the proposition that judgments in such suits are in personal which only established rights and obligations as between parties to a litigation. It was pointed out that it is only in case .Of judgment in ram which prevents any other determination of the subject-matter of the judgment irrespective of who the parties to the litigation are. Judgments of this nature are described in section 41 of the Evidence Act. In this connection the following passage from the judgment would be relevant for the present case:- "There is another ground on which decrees which are not between the same parties are not to be regarded as inconsistent though delivered in the same case and that is that legal rights inhere in juristic persons and therefore juristic persons have in the absence of some legal provision or implication to the contrary separate legal rights so that a decree with respect to one juristic person will be relating to his own right and no question of contradiction between it and a decree in favour of another juristic person can arise. Reference may in this connection be made to two Full Bench judgments of the High Court of Judicature at Lahore. The first case is reported as Sant Singh v.
Golab Singh (AIR 1928 Lahore 572). In that case there was a sale-deed in favour of four vendees and a suit had been brought by the reversioners of the vendor for declaration that the sale would not affect their reversionary rights. The sale-deed was found to be for consideration and necessity by the trial Court and the suit was dismissed. An appeal was filed by the reversioners and during the pendency of the appeal one of the vendee respondents having died and the legal representatives not having been brought on the record the appeal abated as against him. A question arose as to whether the appeal could proceed against the other vendees. It was urged on behalf of the vendees that two inconsistent decrees would come into existence if the appeal succeeded. This contention of the vendees was repelled by all the learned Judges though the lines of reasoning were not the same. All the learned Judges found that the decrees could co-exist in spite of the fact that the same sale was held to be for consideration and necessity in one decree and not for consideration and necessity in the other because the decrees would relate to different shares in the property. The second case is Nanak v. Ahmad Ali (AIR 1946 Lahore 399). In that case a suit had been filed for declaration of ownership of certain property and for cancellation of a sale- deed with respect to that property by a defendant in favour of two other defendants. The suit was decreed and the two defendants who had purchased the property filed an appeal, but one of them died without his legal representatives being brought on the record. It was held that the abatement of the appeal of one could not bring into existence contradictory decrees though the deed had been found to be void by the trial Court and may be found to be valid by the appellate Court because the shares of the two defendants were separate and each decree .Would relate to a separate share.
One more observation is needed in this connection. One of the defendants in a suit may admit the claim of the plaintiff or enter into a compromise with the plaintiff or the suit may be withdrawn against him. In all such cases if originally there could have been separate suits there can be no objection to the suit being proceeded with against the other defendants on the ground that contradictory decrees may come into existence. There can be contradictory decrees in a limited sense if the law contemplates only one decision of a dispute as in a case of pre-emption so that there is a joint cause of action and the defendants can only be sued together as if they together constituted a single juristic person. However, in such cases the suit will be imperfectly constituted if it abates against a defendant and no need will arise of recourse to the objection based on contradictory decrees."
10. Learned counsel for the appellants contended that as the share of deceased appellant Haji in the suit was determinate and ascertainable, the appeal abated only in respect of his share and not in regard to the surviving appellants. In this behalf he relied upon Municipal Committee v. Prabhu Dial and another (AIR 1933 Lahore 556), in which one of the two respondents in an appeal, who were co-owners, each being entitled to J share in the property, died and the legal representatives of the deceased respondent were not impleaded within time, nevertheless it was held that the appeal abated only in respect of the deceased respondents' share in the decree appealed against.
In arriving at this decision the learned Judges followed the earlier case of the same Court reported as Sant Singh v. Golab Singh (AIR 1928 Lahore 572). The last mentioned case was noticed in Wali's case referred to above and approved by this Court, on the ground that there would be no inconsistency between the decrees passed in respect of the deceased party and the surviving party because such decrees will relate to different shares in the property comprising the subject -- matter of the litigation. Another case approved by this Court in the same judgment was Nanak v.
Ahmad Ali (AIR 1946 Lahore 399) which is much closer in similarity with the present case. The facts of the case are detailed in the passage of the judgment quoted above, which will show that, in somewhat similar facts, as in the present case, this Court approved the view that there was no question of inconsistent decrees, because the two decrees would relate to separate shares of two different parties in the same subject-matter.
11. In the present case the learned Judge in the High Court reached the conclusion that the decree eventually to be passed in the appeal of the surviving appellants before him, would be destructive of the decree that attained finality on account of abatement in respect of deceased appellant Haji, on the ground that these two decrees would be passed in the same suit. He also applied another test to the question, namely, whether the suit could be filed by the respondents plaintiffs without impleading Haji as a party and came to the conclusion that Haji was a necessary party in whose absence the, suit would have been incompetent. We do not subscribe to the view taken by the learned Judge in the High Court, for the reason that two inconsistent decrees in respect of the; same subject-matter could be passed by a Court, as discussed in Wali's case, in respect of different parties to the suit. We also do not see why the plaintiffs in this case could not institute a suit only against the present appellants, in respect of their shares, abandoning the claim against deceased Haji. Such a suit would have been perfectly competent in law, because Order II, rule 2, CPC, contemplates such a relinquishment of part of the claim by a plaintiff. Haji would not have been a necessary party to such a suit. Finally the learned Judge proceeded on the assumption that the decree, was indivisible because the suit basically challenged the mutation sanctioned in 1817 on the death of Alam. In our opinion the suit was based on title, as indeed the revenue record of rights does not confer title in favour of any party, but constitution merely official record for fiscal purposes. We have, therefore, come to the conclusion that as deceased Haji was entitled to a specific share in the suit property, the appeal in the High Court abated only in respect of his share and had no consequences as regards the rights of the other parties to the appeal. The decision of the learned Judge in the High Court that the whole appeal was liable to be dismissed on account of abatement of the appeal in respect of deceased appellant Haji was, therefore, not in accordance with law.
12. Having held that the appeal before the High Court did not abate in toto, but only qua deceased Haji, this appeal has to be disposed of on the other point on which leave was granted, namely, whether the suit of the respondents was barred by limitation. It was contended by the learned counsel for the appellants that the suit was barred by virtue of three facts on record which show that the cause of action for suit arose to the respondents more than six years from the date of the suit. In this connection learned counsel first referred to the fact that on the death of Ghaus the common ancestor of the parties, although according to the respondents his four sons inherited I share each in the suit land, the mutation confirmed on 4th August, 1877 vide Ex.6 Ghoshwara mutation" shows that when Alum died issueless his I share instead of being divided among the surviving three brothers the whole share was mutated in the name of Mahram or his sons. The result was that Mahram became the owner of the estate of Ghouse to the extent of J and the remaining I was entered in the name of the two brothers equally. The second event to which the learned counsel referred was that in the settlement record of 1890-91, the position of the shares was recorded as in the aforesaid mutation entered and continued to be shown in the settlement record of 1915-16 as well as subsequent jamabandis until the present day. The learned District Judge repelled this contention by holding that in spite of these entries in the proprietary column of the revenue record, the successors-in-interest of Karam and Saadat have been continuously remaining in possession of share equal to 2/3 share but which for the mutation referred to they were entitled to legally. In this regard the learned District Judge relied upon Ex.P which is the settlement record of 1915-1916 and jamabandi of 1924-1925 Ex.P/9, as well as subsequent jamabandis from 1936-1937 to 1957-1957. In all these documents the possession of the heirs of the aforesaid two brothers is shown as 2/3 share. In this context it was held by the learned District Judge that since the mutation was erroneously attested by revenue authority that by itself cannot be the foundation of title. Further the learned District Judge found that the appellants did not deny the rights of the plaintiffs/ respondents openly and to their knowledge. This position continued until the consolidation proceedings started about a month prior to the institution of the suit when for the first time a real threat to the rights of the respondents was made and they immediately filed the suit. Applying Article 120 of the Limitation Act it was held that the suit was within time. Before us learned counsel has further referred to the land acquisition proceedings taken in 1915 when a portion of the land was acquired and according to him the compensation to the extent of J share was given to Mahram or his heirs and also to the partition on the Shamilat land in 1922 in the same alleged share. These facts have been denied by the learned counsel for the respondents and we were not referred to anything on the record in proof thereof. According to the learned counsel for the respondents the High Court considered these submissions and repelled them. It was pointed out that the exchange which took place in 1980 was made by all the co-sharers with the other co- sharers in the shamilat land and not only by the predecessors-in-interest of appellants alone.
Same was the position as regards the partition of shamilat land which occurred in 1922, in which the share of all the descendants was kept joint. As regards the land acquisition proceedings we are of the opinion that the mere payment of compensation according to the mutation entries does not affect the title of the respondents who were in possession and enjoyment of their due share in the joint land.
13. Learned counsel for the appellants has relied upon Ponnu Nadar and others v. Kumaru Reddiar and others (AIR 1935 Madras 967), in which it was held that where there are successive invasions or denials of a right, time will in general run from the first of the series. But this general proposition was qualified by the learned Judges that in special cases, where for instance the later invasion is of a different and more serious kind an exception to this rule may be admitted. Reliance was also placed on Bank of Upper India . Mt. Hira Kuer etc. (AIR 1937 Oudh 291) and Krishanji Annajee Bulte v.
Annajee Dhondajee Bulte and others (AIR 1930 Bombay 61), but both these cases are distinguishable on facts and are not relevent to the question of law raised before' us. The next judgment cited by the learned counsel was Musammat Mubin-ul-Nisa v. Khan Sahib Ali Hussain and another (119 I.C. 866) which does not support his case as it lays down that mere adverse entry and non-participation of profits, does not amount to ouster. It was held that possession of one co- sharer is possession on behalf of the other co-sharers unless there is ouster of such other co- sharers. The ouster takes place when the title of other co-sharers is denied and a mere entry of the name of one co-sharer does not constitute proof of adverse possession or denial of the rightful share of other co-sharers. This Court had taken a similar view in Aswar Muhammad and others v .
Sharif Din and others (1983 SCM R 626) and it was held that wrong mutation conferred not right in property as revenue record is maintained only for purposes of ensuring realization of land revenue.
We are of the view, as already observed, that the suit in this case was based on title and not for correction of revenue record. Since the respondents had been held to be in possession of their due share in the property until the date of the suit, the Courts below have rightly held the suit to be within time.
14. In the result this appeal is dismissed with costs