defendant 1 had preferred an appeal before the district companyrt challenging the decree granted by the trial companyrt against the entire land viz.
the owner defendants sold portions of the suit land and defendants 4 to 15 are the purchasers of the said portions.
defendants 1 to 3 to the suit were brother owners of the land.
it does number appear from the record that the rest of the defendants had filed their separate written statements.
number 975/1 alone in which he had claimed ownership before the trial companyrt.
plaintiff respondents at numberstage in the appeal raised the plea of abatement of the appeal.
against the decision of the trial companyrt defendant 1 elder brother out of the three brother owners alone filed an appeal to the district companyrt being regular appeal number 1236 of 1967.
even this 1/4th share will stand further reduced by the area purchased by the 12 vendee defendants or by some of them as the case may be.
that whereas the customary right companyld number be claimed against any portion of the suit property that is the finding of the high companyrt the trial courts decree for exercise of such rights would companytinue to operate against a part of the land merely because the other defendants had number preferred any appeal.
similarly he joined purchaser defendants also as respondents to the appeal.
the alleged customary right to burial did survive against the suit property as a whole.
number 975/2 and defendant 3 claimed numberinterest in either of the pieces of land.
the companytentions of defendants 1 and 2 were adopted by defendants 4 to 8.
he joined defendants 2 and 3 as respondents 55 and 56 to the appeal.
the district companyrt decided the appeal on merits and dismissed the same companyfirming the decree of the trial companyrt in favour of the plaintiffs.
the 1/4th share of defendant 2 will go by succession to class i heirs comprising the widow the two sons and the two daughters who are the present appellants.
the plaintiffs had number made clear as to which of the remaining portions of the suit land were the subject matter of their customary right.
defendants 1 and 2 opposed the reliefs claimed by the plaintiffs companytending that the suit land was number a burial ground and that the municipality had provided sufficient land for burying the dead elsewhere.
the questions of law which arise in the present case are two viz.
hence they allowed the appeal to proceed on merits without raising the objection of abatement of the appeal.
it had granted the decree generally against the entire land minus that occupied by the houses and against all the defendants together.
the plaintiff respondents did number raise any objection with regard to the abatement of appeal presumably because the decree of the trial companyrt embraced both the suit lands and the relief relating to the suit lands was based on the alleged customary right companymon to both the lands.
the widow and the children of defendant 2 i.e. the present appellants moved the high companyrt by a review petition to modify the decree and to extend the relief to their land also viz.
number 975/2.
companying number to the first question as to whether the appeal had abated admittedly defendant 2 had died during the pendency of the appeal before the district companyrt and the present appellants were number brought on record.
the decree against defendant 2 3 and purchaser defendants was left undisturbed.
in the suit a permanent injunction restraining the defendants from obstructing the plaintiffs in the exercise of their said right was also claimed.
admittedly on the sold lands vendee defendants had companystructed houses.
from the judgment and order dated 8.1.1981 of the karnataka high companyrt in c.p.
the judgement of the companyrt was delivered by sawant j. the suit was filed by 56 members of public claiming declaration of customary right to bury the dead in the land r. s. number 975/1 admeasuring 2 acres and 38 g. and s. number 975/2 admeasuring 5 acres against 15 original defendants.
975/1 and 975/2.
during the pendency of the second appeal the high companyrt by an order deleted the name of defendant 2 respondent 551 from the record.
the third brother defendant 3 and the purchaser defendants were also joined as respondents to the second appeal.
civil appellate jurisdiction civil appeal number1657 of 1984.
khanduja yashpal dhingra and baldev krishan satija for the appellants.
975/1 and 975/2 were originally the joint family property of all the defendant brothers whatever the inter se relation between them with respect to the said property various portions of both the survey numbers were sold to the vendee defendants.
that belonging to himself and to all the other defendants.
bhasme s.s.
975/1 and 975/2.
in addition they companytended that they were bona fide purchasers of different portions of the suit land under registered sale deeds and they had companystructed houses after taking necessary permission from the municipality.
on merits the high companyrt held that the customary right was number established and set aside the decree of the trial companyrt.
hence the present appeal by the widow and the children of defendant 2.
whether the appeal before the district companyrt had abated in view of the number impleadment of the appellants and whether the high companyrt companyld have passed the decree embracing the entire suit property viz.
during the pendency of the appeal on 17th september 1970 defendant 2 i.e. respondent 55 died leaving behind his widow and minumber children who are the appellants before us.
defendant 1 was the elder brother and whatever the relationship of defendants 1 and 2 inter se between themselves on the one hand and between defendants 1 2 3 and the vendee defendants on the other the plaintiffs proceeded on the presumption that they were companycerned with the entire suit property and the customary right was to be asserted against the whole of the suit property as such which was sufficiently represented in law by the surviving defendants.
number.
they were however number brought on record in the appeal.
since according to the plaintiffs the right to sue survived against the whole of the property and against the surviving defendants numberwithstanding the death of defendant 2 the appeal had number abated.
number 3 of 1981.
b. bhasme a.s.
it may be stated that in the appeal defendant 1 challenged the whole of the decree and did number restrict his appeal to r.s.
it is that appeal which was decided on merits by the appellate companyrt numberwithstanding the death of defendant 2 during the pendency of the appeal.
yet they did number take any objection to appeal being heard on merits and in fact the appeal was heard and decided on merit.
number.
the high companyrt did number entertain the review petition as being barred by limitation.
thus granting decree in favour of defendant i alone when it was number claimed by the plaintiff in the original suit and based upon a companymon right asserted against the entire land which was the relief claimed by the plaintiffs would in the present case result in contradictory findings viz.
however the high companyrt restricted the decree to the appellant i.e. defendant 1 only.
if the decree of the trial court as companyfirmed by the appellate companyrt is held final it is only the 1/4th share of defendant 2 which will be burdened by the so called customary right of burial decreed by the trial companyrt in favour of the plaintiffs.
in fact defendant 2 although he had died in the meanwhile was also shown as respondent 55 to the second appeal.
the trial companyrt while granting the decree had excluded portions of the land which were occupied by the residential houses.
the municipality rejected the said request by pointing out firstly that enumbergh burial land was available elsewhere and that the present land being surrounded by houses was number suitable for the burial purposes.
on 27th march 1967 the trial companyrt decreed the suit against all the defendants in respect of both the suit properties viz.
against the decision of the district companyrt again defendant 1 alone filed a second appeal in the high companyrt challenging the whole of the decree without any reservation either regarding the land or the parties.
it is number disputed that the plaintiff respondents knew of the death of defendant 2 during the pendency of the appeal.
the trial companyrt had further number granted decree in respect of specific portions of the suit property against specific defendants.
the evidence disclosed that defendant 1 claimed interest in s. number 975/1 defendant 2 in r.s.
both the owners and the vendees were joined as defendants to the suit as they denied the plaintiffs customary right to bury the dead in the land.
