M. R. Shah, J
1. Feeling aggrieved and dissatisfied with the impugned order dated 09.07.2007 passed by the High Court of Delhi in RFA No.280 of 2001 and the
subsequent order dated 13.01.2012 passed by the High Court in R.P. No.314 of 2008 in the very same RFA No.280 of 2001, the original appellant
before the High Court â€" Delhi Development Authority (‘DDA’ for short) has preferred the present appeals.
2. The facts leading to the present appeals in a nutshell are as under:
The two plaintiffs, namely, Shri Diwan Chand Anand and Smt. Chanan Kanta Anand claiming to be the coÂowners of the suit property filed the suit
before the Civil Court/learned Trial Court for declaration and permanent injunction. The suit was filed challenging the acquisition proceedings under
the Land Acquisition Act, 1894 (hereinafter referred to as ‘the Act’). In the plaint defendant nos. 8 to 39 were impleaded alleging to be coÂ‐
shares as proper parties to the suit. The original plaintiff no.2, Smt. Chanan Kanta Anand, was the wife of original defendant no.8 â€" Shri Dharam
Chand Anand. On the demise of the husband and wife (original plaintiff no. 2 & defendant no. 8) their children were substituted both as plaintiff nos.
2(i) to 2(x) and defendant nos. 8(i) to 8(x). The suit was contested by the original defendant nos. 1 to 5 and 7 including the appellant DDA. They filed
the written statement controverting the claim of the plaintiffs. The suit was resisted on the ground that the Civil Court had no jurisdiction with respect
to a challenge to the acquisition proceedings under the Land Acquisition Act. Other defendant nos. 8 to 39 did not file any written statement and they
were proceeded ex parte vide order dated 22.03.1983 and 06.10.1983.
2.1 The learned Trial Court initially framed four issues as under:
“Whether the notification dated 16.01.1969 under Section 6 of the Land Acquisition Act with respect to the land in dispute is illegal due to nonÂ‐
satisfaction of the appropriate authority as to the existences of the public purpose? OPP
2. Whether the defendants withdrew from the acquisition proceedings? OPP
3. What is the effect of Letter dated 10.01.1967 and February, 1968 filed as Annexure D and G to the Plaint? OPP.
4. Reliefâ€
2.2 That thereafter one additional preliminary issue was framed on 12.12.1995 as under:
“Whether Civil Court has jurisdiction to go into the validity of the notification under Section 4 and 6 under Land Acquisition Act?â€
2.3 By judgment and decree dated 12.01.2000, the learned Trial Court decreed the suit. It is the case on behalf of the appellant â€" DDA that despite
the learned Trial Court giving a finding that the Civil Court had no jurisdiction to go into the question of validity and legality of the notification under
Section 4 of the Act, it decreed the suit and held that the notifications in question ceased to exist although the notification under Section 48 of the Act
had not been issued. The contesting defendants were restrained from dispossessing the plaintiffs and other coÂowners land so notified for acquisition.
2.4 Feeling aggrieved and dissatisfied by the learned Trial Court, DDA preferred the appeal before the High Court being RFA No.280 of 2001. The
original plaintiff no.1 was arrayed as Respondent No.38 whereas LRs of plaintiff no.2 and defendant no.8 were arrayed as Respondent no.39 (2 â€
10), Â and other defendants 9Â39 were arrayed as Respondent nos. 7Â37 in the appeal. The appeal was admitted for hearing. The original
plaintiff/respondent nos. 38 & 39 were represented by counsel. That some of the respondents (original defendants) out of respondent nos. 7 to 37 (out
of original defendant nos. 9 to 39) were not served as some of them had died. By order dated 09.07.2007 the Division Bench of the High Court
dismissed the entire appeal as having abated by observing as under:
Many respondents have died during the pendency of the appeal but no steps have been taken by the appellant to bring their Legal Representatives on
record.
This appeal accordingly stands abated.â€
2.5 That the appellant â€" DDA filed Review Petition No.314 of 2008 seeking review of the order dated 09.07.2007 dismissing the appeal as having
abated. The High Court issued notice on 03.09.2008 which remained unserved till the decision in the impugned order dated 13.01.2012. In the
meantime, the original plaintiff no.1 Shri Diwan Chand Anand was reported to have expired on 16.11.2010 and after ascertaining about his legal
representatives, application for substitution, being CM No.22449 of 2011 was filed on 08.11.2012, which also remained pending. By the impugned
order dated 13.01.2012 the High Court has dismissed the review application and has refused to recall the order dated 09.07.2007 dismissing the appeal
as having abated. The original order passed by the High Court dated 09.07.2007 dismissing the main appeal as having abated and the subsequent order
dated 13.01.2012 dismissing the review application and refusing to recall the order dated 09.07.2007 are the subject matter of the present appeals.
3. Shri Sanjay Poddar, learned Senior Advocate has appeared on behalf of the appellant â€" DDA and Shri Shyam Divan, learned Senior Advocate
has appeared on behalf of the contesting respondent nos.33 and Shri Sunil Gupta, learned Senior Advocate has appeared on behalf of respondent nos.
3 to 40.
4. Shri Poddar, learned Senior Advocate appearing on behalf of the appellant â€" DDA has vehemently submitted that the High Court has dismissed
the appeal as abated solely on the ground of failure on the part of the appellant to bring on record the legal representatives of certain respondents
without going into the question as to whether the presence of such persons was necessary and also without deciding the application being CM
No.22449 of 2011 (for substitution of legal representatives of original plaintiff  Shri Diwan Chand Anand).
4.1 It is submitted that as a matter of fact the appeal has not been dismissed on the ground of nonÂsubstitution of plaintiffs, who are necessary
parties. It is contended that the appeal as a whole cannot be treated as abated on failure to substitute the legal representative of such defendants who
even did not file written statement and even remained ex parte, in view of the provisions of Order 22 Rule 4(4) of the Code of Civil Procedure (for
short ‘CPC’).
4.2 It is further urged that the High Court has dismissed the appeal on hyper technical ground without examining the core issue, as to, whether, the
Appeal can be heard in the absence of such respondents/defendants or not.
4.3 It is also submitted that even during the course of the hearing of the SLPs, the contesting respondents have argued that said two plaintiffs filed the
suit on behalf of other co owners/defendants and they were prosecuting the suit on their behalf though these defendants remained exÂparte and
thus the learned Trial Court rightly passed the decree in their favour. Reliance was placed on behalf of the appellants upon the decision of this Court in
the case of A. Viswanatha Pilliai and others vs. The Special Tehsildar for Land Acquisition No.4 and others, (1991) 4 SCC 17 in support of the
submission that one coÂowner can prefer and prosecute the legal remedies for and on behalf of other coÂowners. It is submitted that applying the
same analogy, the same coÂowner can also defend and represent the entire estate of other co owner. That if the entire estate is represented by the
plaintiffs in the suit, then they are deemed to have represented the same in the appeal. It is submitted that the respondents/defendants who died did not
file written statement and remained exÂparte and therefore they were not necessary parties for adjudication of the appeal. Reliance is placed upon
the decision of this Court in the case of Mata Prasad Mathur vs. Jawala Prasad Mathur, (2013) 14 SCC 722 and Kanhiya Lal vs. Rameshwar, (1983)
2 SCC 260 (para 6).
4.4 It is further submitted that it is a well settled law that whether the appeal abets as a whole has to depend upon facts of each case and no straight
formula is applicable since each case has its own peculiarities. It is submitted that the Hon’ble High Court has failed to examine this important and
vital aspect which was required to be considered as observed and held by the Constitution Bench Judgment of this Hon’ble Court in the case of
Sardar Amarjit Singh Kalra vs. Pramod Gupta, (2003) 3 SCC 272 (para 26).
4.5 It is urged that in the aforesaid Constitution Bench Judgment this Hon’ble Court has further held that the provisions of Order 22 Rule 4 CPC
are required to be applied liberally with the object of protecting the rights of the parties and not to destroy the same. It is contended that when the land
is sought to be acquired and meant for a public purpose as in the instant case interest of justice warrants that the appeal be heard on merits in a time
bound manner and may not be dismissed as abated.
4.6 Now so far as on the issue of abatement of present SLPs/appeals on the alleged ground of nonÂimpleadment of the LRs of Jagdish Anand in the
present SLPs/appeals who was one of the legal heirs of original plaintiff no.2 and defendant no.8, it is submitted that Jagdish Anand was one of the
legal representatives of original plaintiff no.2 and defendant no.8, out of the 10. That the other legal representatives are already on record and
therefore as the estate is represented by the other legal representatives the present appeals can proceed in the presence of the other legal
representatives who are already on record as all of them represent the estate of their father and mother.
4.7 So far as the submission on behalf of the contesting respondents that on the issue of finality of judgment/decree on account of nonÂsubstitution of
legal representatives and/or there may be conflicting or inconsistent decrees is concerned, it is submitted that as such the judgment and decree passed
by the learned Trial Court is a nullity being without jurisdiction as this Hon’ble Court in the case of State of Bihar vs. Dharender Kumar, (1995) 4
SCC 229 has held that the Civil Court has no jurisdiction to entertain a civil suit in respect of the Land Acquisition Proceedings/Notifications and
cannot pass an injunction order to restrain the government from taking possession. It is submitted that the decree being a nullity the validity of such a
decree can be questioned whenever and wherever it is sought to be relied upon, even at the stage of execution and even at the collateral stage of
proceedings. It is submitted that the defect of jurisdiction as to the subject matter of the suit land, strikes at the root of the matter and such a defect
cannot be cured even by consent of the parties.
4.8 Now in so far as the submission on behalf of the contesting respondents, that there is a huge delay in challenging the original order dated
09.07.2007 passed in the First Appeal, it is submitted that the appellant was prosecuting the Review Application which was filed in the year 2008
which remained pending till 13.01.2012. That the delay in preferring the review was condoned by the High Court. Therefore, the appellant is entitled to
seek exclusion of the period during the pendency of the review petition and the same has been challenged in the present proceeding. It is submitted
that the submission of the respondents in this regard is liable to be rejected. This is because as observed and held by this Court in the case of Esha
Bhattacharjee vs. Managing Committee of Ragunathpur Nafar Academy and others, (2013) 12 SCC 649 as well as in the recent decision in the case
of Radha Gajapathi Raju & Ors. vs. P. Maduri Gajapathi Raju & Ors. In Civil Appeal No.6974Â6975/2021 arising out of SLP (C) No.3373Â3374 of
2020 decided on 22.11.2021 pendency of the proceedings in another Court can be said to be a sufficient ground for condonation of delay. Making
above submissions and relying upon the above decisions, it is prayed to allow the present appeals, set aside the orders passed by the High Court
dismissing the appeal as a whole as having abated due to nonÂbringing the legal representatives of some of the respondents â€" original defendants on
record and to direct to decide the main appeal on merits.
5. While opposing the present appeals, learned Senior Advocates appearing on behalf of the contesting respondents, have, firstly, submitted that as
such there is a huge delay of 1811 days in filing Civil Appeal No.2398 of 2022 against the main order dated 09.07.2007 with no plausible justification
and explanation. As a matter of fact, even the review petition before the High Court was barred by limitation by 378 days.
5.1 It is further submitted by Learned Senior Advocates on behalf of the Contesting Respondents that in order to appreciate the controversy before
the learned Trial Court, few facts are required to be considered which are as under:
“1. Plaintiffs 1 & 2, Diwan Chand Anand and Smt. Chanan Kanta Anand, along with Sh. Dharam Chand Anand, Sh. Gian Chand etc. were
migrants from Lahore, Pakistan. The said plaintiffs along with Sh. Dharam Chand Anand & others, in and around 1947Â48, purchased the disputed
land, situated in Village Kharera, Tehsil Mehrauli, bearing Khasra no.393, 394 & 395, admeasuring 30 bighas 6 biswas of land, along with super
structure, from one Sh. Mohd Ishaq. Sh. Dharam Chand Anand reÂstarted his business of body building on Trucks by constructing a factory on the
said parcels of land in the name of Anand Automobiles and supplied bus bodies to the Military.
2. Since Mohd Ishaq migrated to Pakistan, the properties were claimed by Custodian of Evacuee Properties. Representation was made by the
Plaintiffs & others to deÂnotify the same as Evacuee Property. The same was duly considered and on 5th December 1953, the Custodian of Evacuee
Properties confirmed the sale of the said land with the super structure, in favour of Plaintiffs & other coÂsharers. Sale Certificate was filed with the
plaint. The said land is situated within “Lal Doraâ€.
3. Subsequently, two Deeds of Conveyance with respect to 30 bighas 6 biswas of land, were executed by the President of India, in the year 1962, in
favour of the said Plaintiffs along with Sh. Dharam Chand Anand, Sh. Gian Chand & other coÂsharers. The deeds neither specified the shares of he
said six persons in the parcels of land nor allocated or demarcated any portions of the land between them.
4. In the year 1964, Notification under Section 4 of the Land Acquisition Act, 1894 was issued in respect to number of parcels of land including the
aforesaid land.
5. On 1st May, 1964, the coÂsharers filed objections against the notification and nothing was heard for almost 5 years. On 19th September, 1966, one
of the coÂsharer of the said property, made representation against the proposed acquisitions to GoI.
6. On 23th December, 1966, the Central Govt wrote to the Lt. Governor of Delhi to release the land comprised in Khasra nos. 393, 394 & 395,
covered by notification dated 21st March, 1964
7. Release Policy: On 7th January, 1967, Central Govt. made a policy decision that lands which were isolated and situated amidst built up areas and
not required for public purposes were to be released from acquisition. On 10th January, 1967, the Central Govt. wrote to one of the coÂowners, viz
Shiv Raj Bahadur that Delhi Administration has been directed to deÂnotify the land in dispute.
8. Thereafter, on 6th February, 1967, the Lt. Governor of Delhi wrote to Central Govt. confirming necessary draft to deÂnotify the land to ensure
directions.
9. Again on 10th October 1967, one of the coÂsharer made another representation requesting for release of land.
10. On 9th February 1968, the GoI wrote to Delhi Administration that decision in letter dated 23.12.1966 stands and directed to deÂnotify the parcels
of land, which are subject matter of the SLPs.
11. However, on 16th January, 1969, Notification under Section 6 of the Land Acquisition Act was issued with respect to the land aforesaid.
12. Two out of the six persons, in whose favour the Deeds of Conveyance were executed, viz Dewan Chand Anand & Chanan Kanta Anand w/o
Dharam Chand Anand, filed a suit in the High Court of Delhi, in the year 1974, seeking declaration that the Notification dated 21.03.1964 issued under
Section 4 of the Land Acquisition Act stands withdrawn and or cancelled/waived and that the Section 6 Notification is malaÂfide, null and void,
inoperative in law and without and or in excess of jurisdiction and acquisition. It was inter alia the plea of the plaintiffs in the suit, that the Central
Government, upon being approached by some of the owners of the land, who were impleaded as defendants, had by a communication to the then
Delhi Administration stated that the subject land was not required for the stated purpose and thus the Notification under Section 6 was bad and
without application of mind.
13. The suit was instituted by 2 plaintiffs i.e. 2 of the coÂowenrs. However, out of the remaining 4 persons, in whose favour conveyance deeds were
executed, 3 had already died and accordingly in the said suit, Dharam Chand Anand, the coÂowner and the legal heirs of the remaining 3 coÂowners
had to be and were also impleaded as defendants, as being proper parties, besides the Land Acquisition Authorities and DDA.â€
5.2 It is submitted that the other owners of the land impleaded as defendants, did not contest the suit, as the suit was in mutual interest. A preliminary
issue, namely, whether a civil suit impugning the notifications under Sections 4 & 6 of the Act is maintainable was decided against the plaintiffs.
However, ultimately, the suit was decreed vide judgment and decree dated 12.01.2000 by which a decree of declaration was passed holding that the
notifications under Sections 4 & 6 of the Act had ceased to exist even before filing of the suit and the suit lands stood released from the ambit and
scope of the notifications. The learned Trial Court also passed a decree of permanent injunction restraining the official defendants from dispossessing
the plaintiffs and other coÂsharers from the suit property. It is submitted that thereafter in an appeal preferred by DDA alone, a number of
opportunities were given to bring the legal representatives (LRs) of some of the respondents on record. But the DDA failed to bring on record the
LRs of many of the respondents who died. It is submitted that, at one point of time, the suit was dismissed for nonÂprosecution which was later
restored. Several of the five respondents i.e. the original purchasers of the lands and their heirs died. Even the plaintiff â€" original plaintiff no.1 â€
respondent died on 16.11.2010. Though opportunities were given for substitution of LRs. They were not substituted. It is submitted that in these
circumstances, the High Court vide final order dated 09.07.2007 dismissed the appeal as abated. It is submitted that owing to the original plaintiff no.1
â€" respondent dying and also a number of other private respondents dying, the High Court in the said order, appears to have not given their details. It
is submitted that however, it is not in dispute that a large number of private respondents did die during the pendency of the appeal and the LRs were
not brought on record despite more than thirty opportunities being given to the DDA.
5.3 Now so far as the main issue on merits, that is, whether on the nonÂsubstitution of legal representatives of some of the respondents  owners of
the land and/or whether on demise of the some of the respondents during the pendency of the first appeal and the appellant therein not bringing the
LRs on record despite repeated opportunities, whether the entire appeal stood abated or only in so far as the particular deceased respondents, it is
vehemently submitted by the learned Senior Advocate for the contesting respondents that there would be conflicting decrees qua the respondents who
are already served and whose LRs are brought on record and qua the deceased respondents whose legal representatives are not brought on record. It
is submitted by the learned Senior Advocate that decree dated 12.01.2000 will be in favour of the legal representatives of all the deceased respondents
and if the appeal succeeds in High Court, there will be conflicting decrees since the property is jointly owned and the decree is inseparable or
inseverable as the property remains undivided with each party having right, title and interest in the entire property.
5.4 It is submitted that factually there were two deeds of conveyance in respect of the entire land in favour of six owners, without demarcating their
respective shares. Thus, in law each of the six owners or their heirs were the owners of the entire land having right, title and interest in every part and
parcel of land along with others and it cannot be said that the said owners were exclusive owners of any portion of the suit lands. It is submitted that in
the case of K. Vishwanathan Pillai versus Special Tehsildar for Land Acquisition No.IV, (1991) 4 SCC 17, it has been held that one of
the coÂowners can file a suit and recover the property against the stranger and the decree would enure to the benefit of all the coÂowners. It is
submitted that no coÂowner has right, title and interest in any of the item or portion of the property but has a right, title and interest in every part and
parcel of the joint property.
5.5 It is submitted that in the present case the learned Trial Court vide judgment and decree had decreed that firstly, the notifications had ceased to
exist even before filing of the suit and therefore, the suit land stood released from the scope of the said notifications. Secondly, the permanent
injunction was granted in favour of the plaintiffs and private respondents (coÂsharers) and against the land acquisition authorities as well as the DDA,
where the DDA was restrained from dispossessing them. It is submitted that considering the aforesaid facts of the case, in the absence of legal
representatives of the deceased respondents, the decree in respect of the suit property would become final visÂÃ Âvis the said persons. But in the
present proceedings in respect of the selfÂsame suit property are allowed to continue as against the other respondents, the enforcement of the decree
consequent to the possible success of the proceedings would lead to conflict of decrees not permissible in law. The relief of permanent injunction in
favour of the deceased respondents would continue to be in force, whereas it would not be in force as against the respondents. This also will result in
passing of two conflicting decrees which shall be incapable of enforcement.
5.6 It is submitted that the present is the case of “joint and indivisible decreeâ€/“joint and inseverable or inseparable decreeâ€. Hence when
there is omission or lapse or failure to bring on record the LRs of one or more deceased respondents on time, it would be fatal and would require the
appeal to be dismissed in toto and it would result in abatement of entire proceedings. Otherwise, inconsistent or contradictory decrees would result
with respect to same subject matter visÂÃ Âvis the others.
Making the above submissions it is vehemently submitted that the High Court has rightly dismissed the entire appeal as having abated and the same is
not required to be interfered with by this Court.
6. Making above submissions and relying upon the decisions of this Court in the case of State of Punjab vs. Nathu Ram, AIR 1962 SC 89; Hemareddi
vs. Ramachandra, (2019) 6 SCC 756; Sunkara Lakehminarassama vs. Sagi, (2019) 11 SCC 787 and the recent decision of this Court Venigalla
Koteswaramman vs. Malempati Suryamba, (2021) 4 SCC 246, it is prayed to dismiss the present appeals.
7. We have heard learned counsel for the respective parties at length.
8. At the outset, it is required to be noted that by order dated 09.07.2007, the High Court dismissed the First Appeal preferred by the appellant herein
as having abated on the ground that with respect to some of the original defendants â€" respondents in appeal who died, their legal representatives
were not brought on record. Thus, on nonÂbringing the legal representatives of some of the respondents who died during the pendency of the appeal
on record, the High Court dismissed the appeal as a whole as having abated. The said order dated 09.07.2007 reads as under:
“R.F.A. No.280/2001
Many respondents have died during the pendency of the appeal but no steps have been taken by the appellant to bring their Legal representatives on
record. This appeal accordingly stands abated.â€
8.1 Thereafter the appellant preferred the review application in the year 2008 which has been dismissed by the High Court by the impugned order
dated 13.01.2012. At this stage, it is required to be noted that there was a delay in preferring the Review Application which came to be condoned by
the High Court. That subsequently the appellant herein â€" DDA â€"original appellant, preferred the present two appeals, one, challenging the original
order dated 09.07.2007 dismissing the appeal as a whole as having abated and the second, challenging the order dismissing the review application. It is
sought to be contended on or behalf of the contesting respondents that there is a huge delay in preferring the appeal challenging the order dated
09.07.2007 and therefore present Appeal may not be entertained. However, the appellant was bona fide prosecuting the review application. That after
dismissal of the review application in which the appellant prayed to review and recall the order dated 09.07.2007, that the appellant has preferred two
separate appeals, one, challenging the dismissal of the review application and another, challenging the original order dated 09.07.2007. Therefore, once
the appellant was bona fide prosecuting the review application, it was justified in waiting for the outcome of the Review Application. If, without
waiting for the outcome of the review application, the appellant would have preferred the appeal at that stage, the appellant would have been nonÂ‐
suited on the ground of the pendency of the review application and the appellant would have been told to wait till the outcome of the review
application. Therefore, in the facts and circumstances of the case the time taken in prosecuting the review application is to be excluded and the appeal
preferred challenging the order dated 09.07.2007 is to be considered on merits. Therefore, the objection on behalf of the contesting respondents not to
consider the substantive appeal challenging the order dated 09.07.2007 on merits is hereby overruled and we may proceed to consider the order dated
09.07.2007 dismissing the appeal as a whole as having abated on merits.
8.2 Before we consider the order dated 09.07.2007 on merits the relevant pleadings and the necessary averments in the plaint which would have a
direct bearing on the controversy in the present appeal are required to be referred to. It is required to be noted and it is not in dispute that the suit was
filed by only two coÂowners and rest of the coÂowners/co sharers were joined as defendants as proper parties. According to the original plaintiffs,
the land in question was owned jointly by the original plaintiffs and the other coÂsharers which can be culled out from the following averments in the
plaint:
“4. That by order dated 5th December, 1953, the Custodian of Evacuee Properties confirmed the sale regarding the said land in favour of the
Plaintiffs and the other coÂsharers on condition that they will pay the amount of Rs. 65,399.00 to the Custodian of Evacuee Properties. That amount
of Rs. 65,339.00 was paid to the Custodian by the Plaintiffs and other CoÂsharers.
5. That on the 26th April, 1962, the Custodian of Evacuee Properties issued Sale Certificates regarding the said land in favour of the Plaintiff and the
other co sharers. A copy of the Sale Certificate is attached herewith as Annexure ""B"".
7. That after the purchase, the Plaintiffs and the other cosharers began to reside on land bearing Khasra No. 395 and some of the coÂsharers made a
number of improvements and constructions from 1947Â48 to 1963 in the land comprised in the said Khasra and some co sharers also set up an
Automobile Factory for the manufacture of automobiles and ancillary parts and body building for mechanically propelled vehicles, in the said land.
11. That on 1st May, 1964, the coÂsharers of this property filed objections against the said Notification and thereafter for almost 5 years, no hearing
was fixed for the said objections and no notice of any kind was received by any of the cosharers.
12. That on 19th September, 1966, Mrs. Shiv Raj Bahadur, who is one of the coÂsharers of this property, made a representation against the proposed
acquisition to the Government of India, through the Hon'ble Minister Shri Mehar Chand Khanna of the Ministry of Works & Housing. A copy of the
representation made, is attached herewith as Annexure ""C"".
44. That the Plaintiffs and the other coÂsharers have all along been harassed for reasons unknown, for acquiring the said property by the Local
Administration in spite of two specific directions and decisions of the Central Government to denotify the said property.
(45) That the legal representatives of the co sharers who had died, were entitled to be heard and although it was brought to the notice of the Land
Acquisition Collector that there were legal representatives of the deceased owners, but they were not given any opportunity of being heard, and no
notice was issued to them, therefore, the entire proceedings are vitiated.
47. That Defendants nos. 8 to 39 are coÂsharers in the land in dispute and have been impleaded as proper parties to the suitâ€
8.3 That the plaintiffs being coÂowners/coÂsharers of the entire suit land in question prayed for the following reliefs:
“(a) It is declared that theÂentire proceedings adopted under Section SA of the Land Acquisition Act are malafide, illegal and incomplete violation
of the letter and spirit of. the Land Acquisition Act and is contrary to the principles of natural justice, fairÂplay, equity and good conscience.
(b) It is declared that the Notification no. F.19(93ÂA)/63Â L&H(ii) dated 21st March, 1964 issued under, Section 4 of the Land Acquisition Act
stands withdrawn and/ or cancelled and waived by your own conduct.
(c) It be declared that the Notification No. F.19(93ÂA)/63Â L&H dated 16th January, 1969 issued under Section 6 of the Land Acquisition Act is
malafide, illegal, null and void, ultra vires, inoperative in Law and without jurisdiction and/ or in excess of jurisdiction.
(d) A permanent injunction be issued against the Defendants not to dispossess the Plaintiffs and the other coÂsharers from the property and land
bearing Khasra no. 395, 394 and 708/393 of Village Kharera.
(e) An ad interim exÂparte injunction in terms of the proceedings prayer.
(f) The costs of the suit be allowed to the Plaintiff against the Defendants.
(g) The Defendants be ordered to pay to the Plaintiffs the cost of incidentals.
(h) The Court may pass such other and further orders as may be just, proper and necessary under the circumstances of the case.â€
8.4 Thus, from the aforesaid it can be seen that the original plaintiffs â€" two coÂowners/coÂsharers of the entire land in question fought with respect
to the entire land belonging to the plaintiffs and the coÂowners jointly. It can be said that the original plaintiffs instituted the suit for themselves as well
as for and/or on behalf of the other coÂowners â€" coÂsharers with respect to the entire land jointly owned by all of them. Thus, it can safely be held
that the entire estate was represented through original plaintiffs in which even the coÂsharers/co owners were also joined as defendants as proper
parties. Therefore, even when the learned Trial Court passed the judgment and decree, it passed the judgment and decree with respect to the entire
land and even granted the permanent injunction to protect the ownership and protection of the plaintiffs as well as the other coÂsharers over the suit
land. In light of the above factual scenario the order passed by the High Court dated 09.07.2007 in dismissing the first appeal as a whole as having
been abated on not taking step to bring on record the legal representatives of some of the original defendants/respondents in the appeal is required to
be tested and/or considered in light of the settled legal principles.
9. While considering the impugned order passed by the High Court dated 09.07.2007, dismissing the appeal as having abated, the law on abatement
and on Order 22 CPC is required to be discussed. Order 22 CPC fell for consideration before this Court in the recent decision in the case of Venigalla
Koteswaramman (supra) in which this Court considered in detail the earlier decisions of this Court in the case of Nathu Ram (supra) as well as the
other decisions including the later decision in the case of Hemareddi (supra).
The relevant discussion on Order 22 CPC in paragraphs 42 to 44.8 are extracted as under:
“42. The rules of procedure for dealing with death, marriage, and insolvency of parties in a civil litigation are essentially governed by the provisions
contained in Order 22 of the Code.
42.1. Though the provisions in Rule 1 to Rule 10Â A of Order 22 primarily refer to the proceedings in a suit but, by virtue of Rule 11, the said
provisions apply to the appeals too and, for the purpose of an appeal, the expressions “plaintiffâ€, “defendant†and “suit†could be read as
“appellantâ€, “respondent†and “appeal†respectively.
42.2. Rule 1 of Order 22 of the Code declares that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.
When read for the purpose of appeal, this provision means that the death of an appellant or respondent shall not cause the appeal to abate if the right
to sue survives.
42.3. Rule 2 of Order 22 of the Code ordains the procedure where one of the several plaintiffs or defendants dies and right to sue survives to the
surviving plaintiff(s) alone, or against the surviving defendant(s) alone. The same procedure applies in appeal where one of the several appellants or
respondents dies and right to sue survives to the surviving appellant(s) alone, or against the surviving respondent(s) alone. The procedure is that the
Court is required to cause an entry to that effect to be made on record and the appeal is to proceed at the instance of the surviving appellant(s) or
against the surviving respondent(s), as the case may be.
42.4. However, by virtue of Rule 4 read with Rule 11 of Order 22 of the Code, in case of death of one of the several respondents, where right to sue
does not survive against the surviving respondent or respondents as also in the case where the sole respondent dies and the right to sue survives, the
contemplated procedure is that the legal representatives of the deceased respondent are to be substituted in his place; and if no application is made for
such substitution within the time limited by law, the appeal abates as against the deceased respondent.
42.5. Of course, the provisions have been made for dealing with the application for substitution filed belatedly but the same need not be elaborated in
the present case because it remains an admitted fact that no application for substitution of legal representatives of Defendant 2 (who was Respondent
3 in AS No. 1887 of 1988) was made before the High Court.
42.6. The relevant provisions contained in Rules 1, 2, subÂrules (1), (2) and (3) of Rule 4 and Rule 11 of Order 22 could be usefully reproduced as
under
“1. No abatement by party's death, if right to sue survives.â€"The death of a plaintiff or defendant shall not cause the suit to abate if the right
to sue survives.
2. Procedure where one of several plaintiffs or defendants dies and right to sue survives.â€" Where there are more plaintiffs or defendants than
one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or
defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving
plaintiff or plaintiffs, or against the surviving defendant or defendants.
***
4. Procedure in case of death of one of several defendants or of sole defendant.â€"(1) Where one of two or more defendants dies and the
right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to
sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and
shall proceed with the suit.
(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.
(3) Where within the time limited by law no application is made under subÂrule (1), the suit shall abate as against the deceased defendant.
***
11. Application of Order to appeals.â€"In the application of this Order to appeals, so far as may be, the word “plaintiff†shall be held to
include an appellant, the word “defendant†a respondent, and the word “suit†an appeal.â€
43. For determining if Order 22 Rule 2 could apply, we have to examine if right to sue survived against the surviving respondents. It is not the case
that no legal heirs were available for Defendant 2. It is also not the case where the estate of the deceased Defendant 2 passed on to the remaining
parties by survivorship or otherwise. Therefore, applicability of Order 22 Rule 2 CPC is clearly ruled out.
44. Admittedly, steps were not taken for substitution of the legal representatives of Defendant 2, who was Respondent 3 in AS No. 1887 of 1988.
Therefore, subÂrule (3) of Rule 4 of Order 22 of the Code directly came into operation and the said appeal filed by Defendants 16 to 18 abated
against Defendant 2 (Respondent 3 therein). We may profitably recapitulate at this juncture that in fact, the other appeal filed by Defendants 4, 13 and
14 (AS No. 1433 of 1989) was specifically dismissed by the High Court as against the deceased Defendant 2 on 25Â4Â2006.
44.1. Once it is found that the appeal filed by Defendants 16 to 18 abated as against Defendant 2 (Respondent 3), the question arises as to whether
that appeal could have proceeded against the surviving respondents i.e. the plaintiff and Defendants 1 and 3 (who were Respondents 1, 2 and 4). For
dealing with this question, we may usefully refer to the relevant principles, concerning the effect of abatement of appeal against one respondent in
case of multiple respondents, as enunciated and explained by this Court.
44.2. The relevant principles were stated and explained in depth by this Court in State of Punjab v. Nathu Ram [State of Punjab v. Nathu Ram, AIR
1962 SC 89]. In that case, the Punjab Government had acquired certain pieces of land belonging to two brothers jointly. Upon their refusal to accept
the compensation offered, their joint claim was referred to arbitration and an award was passed in their favour that was challenged by the State
Government in appeal before the High Court. During pendency of appeal, one of the brothers died but no application was filed within time to bring on
record his legal representatives. The High Court dismissed [Province of East Punjab v. Labhu Ram, 1954 SCC OnLine P&H 132] the appeal while
observing that it had abated against the deceased brother and consequently, abated against the surviving brother too. The order so passed by the High
Court was questioned before this Court in appeal by certificate of fitness.
44.3. While dismissing the appeal and affirming the views of the High Court, this Court in Nathu Ram case [State of Punjab v. Nathu Ram, AIR 1962
SC 89] enunciated the principles concerning the effect of abatement and explained as to why, in case of joint and indivisible decree, the appeal against
the surviving respondent(s) cannot be proceeded with and has to be dismissed as a result of its abatement against the deceased respondent; the basic
reason being that in the absence of the legal representatives of deceased respondent, the appellate court cannot determine between the appellant and
the legal representatives anything which may affect the rights of the legal representatives. This Court pointed out that by abatement of appeal qua the
deceased respondent, the decree between the appellant and the deceased respondent becomes final and the appellate court cannot, in any way modify
that decree, directly or indirectly.
44.4. The Court observed in that case, inter alia, as under: (Nathu Ram case [State of Punjab v. Nathu Ram, AIR 1962 SC 89] , AIR pp. 90Â91,
paras 4Â6 & 8)
“4. It is not disputed that in view of Order 22 Rule 4, Civil Procedure Code, hereinafter called the Code, the appeal abated against Labhu Ram,
deceased, when no application for bringing on record his legal representatives had been made within the time limited by law. The Code does not
provide for the abatement of the appeal against the other respondents. Courts have held that in certain circumstances, the appeals against the coÂ‐
respondents would also abate as a result of the abatement of the appeal against the deceased respondent. They have not been always agreed with
respect to the result of the particular circumstances of a case and there has been, consequently, divergence of opinion in the application of the
principle. It will serve no useful purpose to consider the cases. Suffice it to say that when Order 22 Rule 4 does not provide for the abatement of the
appeals against the coÂrespondents of the deceased respondent there can be no question of abatement of the appeals against them. To say that the
appeals against them abated in certain circumstances, is not a correct statement. Of course, the appeals against them cannot proceed in certain
circumstances and have therefore to be dismissed. Such a result depends on the nature of the relief sought in the appeal.
5. The same conclusion is to be drawn from the provisions of Order 1 Rule 9 of the Code which provides that no suit shall be defeated by reason of
the misjoinder or nonÂjoinder of parties and the court may, in every suit, deal with the matter in controversy so far as regards the rights and interests
of the parties actually before it. It follows, therefore, that if the court can deal with the matter in controversy so far as regards the rights and interests
of the appellant and the respondents other than the deceased respondent, it has to proceed with the appeal and decide it. It is only when it is not
possible for the court to deal with such matters, that it will have to refuse to proceed further with the appeal and therefore dismiss it.
6. The question whether a court can deal with such matters or not, will depend on the facts of each case and therefore no exhaustive statement can
be made about the circumstances when this is possible or is not possible. It may, however, be stated that ordinarily the considerations which
weigh with the court in deciding upon this question are whether the appeal between the appellants and the respondents other than the
deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before
the court. The test to determine this has been described in diverse forms. Courts will not proceed with an appeal (a) when the success of the
appeal may lead to the court's coming to a decision which be in conflict with the decision between the appellant and the deceased
respondent and therefore which would lead to the court's passing a decree which will be contradictory to the decree which had become
final with respect to the same subjectÂmatter between the appellant and the deceased respondent; (b) when the appellant could not have
brought the action for the necessary relief against those respondents alone who are still before the court; and (c) when the decree against
the surviving respondents, if the appeal succeeds, be ineffective, that is to say, it could not be successfully executed.
***
8. The difficulty arises always when there is a joint decree. Here again, the consensus of opinion is that if the decree is joint and indivisible, the appeal
against the other respondents also will not be proceeded with and will have to be dismissed as a result of the abatement of the appeal against the
deceased respondent. Different views exist in the case of joint decrees in favour of respondents whose rights in the subjectÂmatter of the decree are
specified. One view is that in such cases, the abatement of the appeal against the deceased respondent will have the result of making the decree
affecting his specific interest to be final and that the decree against the other respondents can be suitably dealt with by the appellate court. We do not
consider this view correct. The specification of shares or of interest of the deceased respondent does not affect the nature of the decree and the
capacity of the joint decreeÂholder to execute the entire decree or to resist the attempt of the other party to interfere with the joint right decreed in his
favour. The abatement of an appeal means not only that the decree between the appellant and the deceased respondent has become final,
but also, as a necessary corollary, that the appellate court cannot, in any way, modify that decree directly or indirectly. The reason is plain.
It is that in the absence of the legal representatives of the deceased respondent, the appellate court cannot determine anything between the
appellant and the legal representatives which may affect the rights of the legal representatives under the decree . It is immaterial that the
modification which the Court will do is one to which exception can or cannot be taken.â€
9.1 After referring to the decision of this Court in the case of Nathu Ram (supra), in the case of Vennigalla Koteswaramma vs. Malampati Suryamba
and Others, (2003) 3 SCC 272, it is observed by this Court that the nature and extent of the abatement in a given case and the decision to be taken
thereon will depend upon the facts of each case and, therefore, no exhaustive statement can be made either way and that the decision will ultimately
depend upon the fact whether the decree obtained was a joint decree or a separate one. It is further observed that this question cannot and should not
also be tested merely on the format of the decree under challenge or it being one or the manner in which it was dealt with before or by the Court
which passed it.
Thus, as observed and held by the Court:
(i) The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives;
(ii) If there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs
alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall
proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants (Order 22 Rule 2);
(iii) where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole
defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal
representative of the deceased defendant to be made a party and shall proceed with the suit. Where within the time limited by law no application is
made under subÂrule 1 of Order 22 Rule 4, the suit shall abate as against the deceased defendant;
(iv) the provision of Order 22 shall also apply to the appeal proceedings also.
9.2 As observed and held by this Court in the aforesaid decisions while considering whether the suit/appeal has abated due to nonÂbringing the legal
representatives of plaintiffs/defendants or not, the Court has to examine if the right to sue survives against the surviving respondents. Thereafter the
Appellate Court has to consider the question whether nonÂbringing the legal representatives of some of the defendants, the appeal could have
proceeded against the surviving respondents. Therefore, the Appellate Court has to consider the effect of abatement of the appeal against each of the
respondents in case of multiple respondents.
9.3 Applying the law laid down by this Court in the aforesaid decisions to the impugned judgment and order dated 09.07.2007 passed by the High
Court, it appears that the High Court has mechanically and without holding any further enquiry which was required to be conducted as observed
hereinabove, has simply dismissed the entire appeal as having abated due to nonÂbringing on record the legal representatives of some of the
respondents â€" the original defendants who, as such, neither contested the suit nor filed the written statements. At the cost of repetition, it is observed
that as such the original plaintiffs instituted the suit being co owners/coÂsharers and for and on behalf of all the co owners/coÂsharers of the
entire land sought to be acquired under the Land Acquisition Act.
9.4 As observed and held by this Court in the case of K. Vishwanathan Pillai (supra), the coÂowner is as much an owner of the entire property as a
sole owner of the property. No coÂowner has a definite right, title and interest in any particular item or a portion thereof. On the other hand, he has
right, title and interest in every part and parcel of the joint property. He owns several parts of the composite property along with others and it cannot
be said that he is only a part owner or a fractional owner in the property. It is observed that, therefore, one coÂowner can file a suit and recover the
property against strangers and the decree would enure to all the coÂowners. The aforesaid principle of law would be applicable in the appeal also.
Thus, in the instant case, when the original plaintiffs â€" two coÂowners instituted the suit with respect to the entire suit land jointly owned by the
plaintiffs as well as defendants nos. 9 to 39 and when some of the defendants/respondents in appeal died, it can be said that estate is represented by
others â€" more particularly the plaintiffs/heirs of the plaintiffs and it cannot be said that on not bringing the legal representatives of the some of the
co sharers â€" defendants â€" respondents in appeal the appeal would abate as a whole.
9.5 While passing the impugned order dated 09.07.2007, the High Court has neither considered the relevant provisions of CPC namely Order 22 Rule
1 to 11 nor held any enquiry which was required to be conducted as observed hereinabove.
9.6 One another important aspect which is also required to be noted is that the suit was filed challenging the acquisition proceedings under the Land
Acquisition Act, that too, with respect to the land in question. It was the specific case on behalf of the appellant and even the issue was framed by the
learned Trial Court on the jurisdiction of the Civil Court to entertain the suit challenging the acquisition proceedings under the Land Acquisition Act.
From the findings recorded by the learned Trial Court, it appears that though the learned Trial Court held the issue of jurisdiction in favour of the
appellant herein, still thereafter it granted the relief and decreed the suit which was the subject matter before the High Court. Thus, according to the
appellant  DDA â€" the judgment and decree passed by the learned Trial Court was a nullity and wholly without jurisdiction. If that be so, then,
another question which may be required to be considered is, when the original plaintiffs/legal heirs are on record, can it be said that the entire appeal
has abated, if in the appeal it is held that the decree was a nullity and/or wholly without jurisdiction then the decree will be nullity for all purposes. The
aforesaid aspect is also required to be determined.
9.7 In any case what would have been the consequences of not bringing the legal representatives of some of the respondents/defendants who died
during the pendency of the appeal and whether the right to sue survives against the original plaintiffs and/or surviving respondents/defendants was to
be considered by the High Court, which the High Court failed to consider in the instant case.
10. In view of the above discussion and for the reason stated above both these appeals succeed. The impugned judgment and order passed by the
High Court dated 09.07.2007 dismissing the appeal as a whole as having abated for not bringing the legal representatives of some of the
respondents/original defendants who died during the pendency of the appeal is hereby set aside. The High Court to consider the Appeal now in
accordance with law and on its own merits and in light of the observations made hereinabove, more particularly, the High Court shall have to consider
and hold an enquiry, whether, on the death of some of the respondents in the appeal (defendants in suit) the right to sue against the remaining
respondents â€" original plaintiffs/the remaining original defendants would survive or not including the fact that the estate is being represented by
surviving original plaintiffs/heirs of the original plaintiffs/surviving defendants having a bearing on the enquiry to be held.
With these observations the present Appeals are Allowed accordingly to the aforesaid extent. However, there shall be no order as to costs.
