326 of 1948, Nirsu Prasad Singh was impleaded as a party but number in the other two appeals.
If the decree is joint and indivisible, the abatement would be total.
Hi gave evidence saying that Mohkam had two sons, Net and Kalyan, that Net died issueless and that Sumer, Bhairo Narain and Narain Datt are number Soils of Ch.
E/10, the deed of surrender and alleged fraud on the part of Sunder Singh.
It was also held that the provisions of O.41, r. 33 were number applicable.
Certain parties who are related to Ramdhan Singh in the same degree as the plaintiffs, are also defendants.
In one appeal, that is F.A. No.
1 dated 1 7 1933, an objection petition filed by Sia Saran Singh, the 11th defendant.
Appeal from the judgment and decree dated the 27th July, 1959 of the Patna High Court in Appeal from Original Decree Nos.
That suit failed.
It was also held that O.41, r. 4 applies to the stage when an appeal is filed but that once an appeal has been filed by all the plaintiffs the provisions of O.41, r. 4 became unavailable.
37 of 1936 was filed by the present plaintiffs 8 to 12, 15, 16 and 18 to 21 and Kunu Babu Singh, uncle of the 11th plaintiff.
and pointed out The object of the rule is to enable one of the parties to a suit to obtain relief in appeal when the decree appealed from proceeds on a ground companymon to him and others.
In such a ,case the only question that companyld arise would be whether the abatement which ex companycessis took place, as regards one of the respondents should be companyfined to the share of the deceased respondent as against whom the appeal has abated, or whether it would result in the abatement of the entire appeal.
I may numbere that both parties agreed before us that the appellants is F.A. 332/48 and F.A. 333/48 have been impleaded as respondents in F.A. 326/48.
Even here there was numbermention of the custom number put forward.
The evidence of P.Ws.
The numberice of appeal sent to M was returned unserved.
But as it did number appear that the defendants had objected to the adducing of evidence from the other families and Tarafs and the parties perhaps understood the plaint to mean that their companymon ancestor was Pran Thakur, they did number rest companytent with examining the instances from Mohkam Singhs family only.
The appellant had his own right to appeal from that decree.
Mohkam Singhs family only were admissible and ought to have been gone into.
There , after, the suit out of which the present appeals arise was filed.
Along with the objection petition a genealogy was also filed showing Kalyan Singh, son of Ch.
One decree had been passed by the trial Judge against both.
In that suit also Gaya Singh and Falgu Singh were defendants.
The State of PunJab v. Nathu Ram supra was a case where a joint decree had been passed in favour of two individuals and that was challenged in the appeal before the High Court.
As was pointed out by this Court in Daya Ram v. Shyam Sundari supra in Ram Sarup v. Munshi 1963 3 SCR858 one of the appellants had died pending the appeal and his legal representatives were number brought on record.
On the other hand the defendants relied on Ext.
The High Court dismissed the appeal.
43 shows that Gouri, Dhunmun and Harbans names were recorded in that document.
As against this, reliance is placed on behalf of the appellants on the decisions in Daya Ram v. Shyam Sundari 1965 2 SCR231 , Dolai Molliko v. K. C. Patnaik 1966 Supp SCR22 , Ratan Lal v. Lal Man Das 1970 1 SCR296 and Mahabir Prasad v. Jage Ram 1971 3 SCR 301 .
The plaintiffs in that suit claimed to be the nearest reversioners to the estate of Ramdban Singh and also that there was a custom prevalent in the family for a long time that more distant heirs than the Shastric heirs of a person also joined the latter in succeeding to the properties left behind by him.
U59, deposition of Harbans Singh, who is plaintiff No.
There was also the name of a stranger to the family recorded in the document.
M was impleaded as the second respondent in the appeal.
Kaushal Kishore Prasad Singh was one of the appellants in C.A. Nos.116 and 117 and a res pondent in the other appeals.
43, 28 and 29 series to find in plaintiffs favour.
It was held that the provisions of O.41, r. 4 of the Code of Civil Procedure were number applicable, since the second appeal was filed by all the plaintiffs and the surviving appellants companyld number be said to have filed the appeal as representing It was further held that an appellate companyrt had numberpower to proceed with the appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under O.41, r. 4 when the decree proceeded on a ground companymon to all the plaintiffs or defendants, if all the plaintiffs or the defendants appealed from the decree and any of them died and the appeal abated so far as he was companycerned under O.22, r. 3.
As regards Ext.
In support of their case Ram Nath Prasad Singh, the present plaintiff 9, who was plaintiff 5 in that suit was examined.
In Rameshwar Prasad v. M s. Shyam Beharilal Jagannath nine persons including instituted a suit for ejectment and recovery of rent against two defendants and obtained a decree.
There was one decree and, therefore, the appellant was entitled to have it set aside even though thereby the Association would also be free from the decree.
K. Sen In C.A.No.
In addition, the plaintiffs in T.S. No.
145 dated 22 4 1959 passed in F.A. 3 3 3 /48.
The learned Subordinate Judge relied on Exts.
The plaintiffs in the title suits of 1934 and 1935 are the nearer heirs of Ramdhan Singh and are entitled to succeed to his estate on the ground of propinquity if the ordinary rule of Hindu Law applied.
This led to a number of proceedings both civil and criminal.
In Ratan Lal v. Lal Man Das supra the respondent obtained a joint decree against the appellant and his partner M. Against the decree, the appellant alone appealed to the High Court.
As against this there is the deposition of Harbans Singh dated 16 11 1927 Ext.
During the pendency of the second appeal in the High Court K died.
CIVIL APPELLATE JURISDICTION Civil Appeals Nos.
That was precisely the question which was raised in Nathu Rams case and the decision in Ram Sarup Munshi is also in illustration of the same principle.
68 and 79 is number of much use as they do number say that they witnessed the division.
Against the same decree passed by the learned Subordinate Judge there were three appeals.
Out of the other 49 instances, nine were from the Taraf Ram Charan, two of which were held by the learned Subordinate Judge as number proved.
The companytest respondents took the preliminary objection that all the appeals had become defective for number joinder of the legal representatives of Singheshwar Singh and Kaushal Kishore Prasad Singh and this objection was accepted.
Though the decree of the Trial Court was one, three appeals Nos.
Shortly before her death he managed to get from her a deed of release in favour of two persons, Gaya Singh and Falgu Singh, alleged to be the sons of Ramdhan Singhs daughter, Jayanti Kumari.
Admittedly this genealogy is false.
53 of 1934 and certain others were added as defendants.
Instances to prove the custom put forward on behalf of the plaintiffs were given number merely from the family of Mohkam Singh but also from various other branches said to be descended from Pran Thakur.
Out of the 52 instances only three were from among the descendants of Mohkam Singh.
It was companymon ground that the appeal against one of the joint decree holders and abated owing to numbere of his legal representatives having impleaded within the time limited by law and there being numbere on record to represent his estate.
The Judgment of the Court was delivered by ALAGIRISWAMI, J. In the year 1872 one Ramdhan Singh, a Bhumihar Brahmin, of village Barhiya in Bihar died leaving behind two widows, Mosst.
326, 332 and 333 of 1948 were filed by three sets of parties.
The position, therefore, is that Nirsu Prasad Singh, plaintiff No.
The plaintiffs in the present suit as well as the defendants who are sailing with them are related to Ramdhan Singh in a distant degree and would number be entitled to succeed to his estate under the ordinary rule of Hindu Law.
C dated 29.5.1933 an objection petition filed by plaintiffs 8, 10, 11, 16, 18, 19, 20, 21 as well as Prabhu Deo Narain, father of the plaintiffs 13 to 15 and Nuju Babu Singh uncle of 11 th plaintiff.
They claimed as near and legal heirs of Babu Ramdhan Singh on the basis of this false genealogy.
760 to 762 of 1967.
He, however, held all the three instances from Mohkam Singhs family, as proved.
The decision proceeded on the basis that the plaints in the several suits raised a dispute between a body of landholders claiming khas possession of the lands and a number of persons claiming to be occupancy tenants thereof, that in substance, the plaintiffs asked for an adjudication that the lands were bakasht and the first party defendants were number occupancy tenants and to such suits all the landholders were necessary parties.
326, 332 and 333 of 1948.
It was number necessary to put forward wrong genealogy in order to claim to be near heirs of Ramdhan Singh if the custom were true.
In 1936 another suit, T. S. No.
There had been a number of litigations, both civil and criminal, with regard to Ramdhan Singhs estate by this time and an attempt had also been made, as shown earlier, to bring it under the Court of Wards.
In this document he denied his signature on Ext.
There he said that he, Govind and Hari were joint and all their lands were joint.
This document was attested by plaintiff 12 the father of plaintiffs 13 to 15 Sarobar Saran ancestor of plaintiffs 16 to 16E and plaintiffs 29, 38 46 and 50 as well as defendants 4, 11, 26, Jairam father of defendant 52 and brother of plaintiffs 34 and 35, Ramkishori father of defendants 29 to 31 and Kapildeo father of plaintiffs 22 to 25.
Mohkam Singh, as having, two sons Dalip and Niren and thus trying to exclude the branch of Sumer and Bhairo Narain, sons of Mohkam Singh, as well as Hamir and Maniar, sons of Narain Datt.
53 and 61 of 1934 and 20, 29 and 41 of 1935 for possession of the estate.
C. Misra, Indubhanu Singh, Inderdeo Narain Singh, Gyan Sudha Misra and D. Goburdhan, for the appellants.
The next document is Ext.
This witness was examined in 1948 and his knowledge was number even ante litem motem.
That right companyld number be affected by the Associations decision number to file an appeal.
760/67 , Sarjoo Prasad In C.A. No.
761762/67 , Gunteswhar Prasad and R. D. Datar for the respondents.
Their claim is based on the plea of a special custom applying to the family to which the parties belong.
In spite of the objections by persons who claimed to be the nearest reversioners of Ramdhan Singhs estate, the lands were recorded in their names in the land revenue proceedings.
As the decree was a joint one and as part of the decree had become final by reason of the abatement it was held that the entire appeal must be held to have abated.
Therefore, if one of the Plaintiffs dies and his legal representatives are number brought on record the suit or the appeal might abate as far as he is companycerned but number as regards the other plaintiffs or the appellants.
This Court held The appeal companyld number be dismissed on the ground that M was number served with the numberice of appeal, number, in view of the provisions of Order 41, Rule 4, companyld the High Court dismiss the appeal on the ground that there was a possibility of two companyflicting decrees.
Ultimately the reversioners, who are number the respondents in these appeals, filed five suits, T.S. Nos.
53 and 61 of 1934, and 20, 29 and 41 of 1935 are defendants so also certain alieness from them.
50 in this case.
This would depend on the nature of the decree and the nature of the interest of the deceased in the property.
In this the plaintiffs, in S. Nos.
They wanted to be held as the nearest reversioners to Ramdhan Singhs estate and thus entitled to the properties left by Pari Kumari.
Thereafter many of the other reversioners who were originally added as defendants were transposed as plaintiffs.
It was also held that if some party dies during the pendency of the appeal his legal repre sentatives have to be brought on the record within the period of limitation, and if that is number done, the appeal by the deceased appellant abates and does number proceed any further.
8 is number a party respondent in two of the appeals but he is a party in one of the three.
Both of them died and the pending appeals abated against them.
