Shri Yeshwant Jaganath Kolhapurkar and Others Vs Shri Chandrakant Kolhapurkar and Others

@JUDGMENTTAG-ORDER

A.P. Lavande, J.@mdashHeard Mr. S.N. Joshi, learned Counsel appearing for the appellants and Mr. S.D. Lotlikar, learned Senior Counsel for the respondent Nos. 1 and 2. Second Appeal No. 68/2010 has been preferred by the appellants challenging the judgment and decree dated 22nd January, 2009 passed by the Ad hoc District Judge-I, Panaji in Regular Civil Appeal No. 48/2007 partly allowing the appeal filed by some of the respondents against the judgment and decree dated 31st March, 2007 passed by the learned Civil Judge, J. D., Panaji in Regular Civil Suit No. 220/2000 decreeing the suit for partition filed by the plaintiffs/ respondent Nos. 1 and 2 against the defendants.

2. Second Appeal was filed by the present appellants, who were some of the defendants in the suit. By the judgment dated 31st March, 2007, the Trial Court passed preliminary decree and directed a Commissioner to be appointed to carry out partition. The Appellate Court partly allowed the appeal and directed the Trial Court to appoint a Surveyor and Valuer with direction to them to submit their report to effect the partition of the common and undivided portion of the property. The Appellate Court also gave further directions. The appellants, who were the defendants in the suit sought to delete respondent Nos. 3, 4, 13, 44 and 45 from the cause title. This Court by the order dated 9th February, 2010 permitted deletion. Consequently, the said respondents stood deleted from the cause title.

3. Learned Senior Counsel for respondent Nos. 1 and 2 submitted that in view of the deletion of the said respondents, the appeal is incompetent since the suit is filed by the plaintiffs for partition and as such, the decree passed by the Appellate Court has become final as against the deleted respondents and consequently, the present appeal is incompetent.

4. Mr. Joshi, learned Counsel for the appellants was further called upon to satisfy as to how the present second appeal would be competent and maintainable in view of the deletion of the above referred respondents.

5. Mr. Joshi, learned Counsel appearing for the appellants submitted that the appeal does not abate on account of deletion of the above referred respondents, and in support of his submission, Mr. Joshi relied upon the following judgments reported in Mohd. Hussain (dead) by LRs and Others Vs. Occhavlal and Others, and Hasan Ali and others Vs. State of U.P. and others, . Mr. Joshi thereafter submitted that in the event this Court holds that the appeal is incompetent, the appellants be permitted to issue notices to the deleted respondents by allowing MCA Nos. 607/2010 and 608/2010 by which the appellants have sought permission to issue fresh notices to respondent Nos. 44 and 45 and to implead the legal representatives of respondent Nos. 13 and 47. Mr. Joshi also sought to bring the legal representatives of deceased respondent No. 1 on record, who had expired on 27th August, 2010. Mr. Joshi submitted that on account of bonafide mistake on his part, there was deletion of respondent Nos. 3, 4, 13, 44 and 45 from the cause title of the second appeal and, therefore, the applications filed by the appellants be allowed.

6. Mr. Lotlikar, learned Senior Counsel opposed the prayer made by Mr. Joshi and submitted that in view of the deletion of the above referred respondents, the decree against the respondent Nos. 44 and 45 and the legal representatives of respondent Nos. 13 and 47 have become final and as such, at this stage, no case is made out for recalling of the order dated 9th February, 2010 by which the appellants were permitted to delete the above referred respondents at their own request. Mr. Lotlikar further submitted that since the impugned decree has become final as against the deleted respondents and the legal representatives, the present appeal is incompetent since there cannot be two conflicting decrees.

7. I have carefully considered the rival submissions and perused the record.

8. By order dated 9th February, 2010 passed in Civil Application No. 21/2010, at the request of the appellants, respondent Nos. 3, 4, 13, 44 and 45 were deleted on the ground that they were not contesting. The necessary sequitur is that the impugned decree insofar as respondent Nos. 3, 4, 13, 44 and 45 are concerned, have become final. This being the position, Mr. Lotlikar is right in contending that the appeal is incompetent because there cannot be two conflicting decrees. The impugned decree insofar as respondent Nos. 44 and 45 and legal representatives of respondent Nos. 13 and 47, have become final. The authorities cited by Mr. Joshi are absolutely not applicable inasmuch as the factual matrix in both these judgments is entirely different.

9. In Babu Sukhram Singh Vs. Ram Dular Singh and Others, , the Apex Court held that where a joint claim is made as against the defendants, failure to implead the legal representatives of the deceased defendant in appeal results in abatement of appeal in toto. Indisputably, in the present case, the decree passed by the Appellate Court, is in a suit for partition, therefore, the decree insofar as respondent Nos. 44 and 45 and the legal representatives of respondent Nos. 13 and 47 are concerned, has become final. The ratio laid down in the case of Babu Sukharam Singh is squarely applicable in the present case. Therefore, the appeal is incompetent and is liable to be dismissed as abated. Insofar as the submission of Mr. Joshi that there was bonafide mistake on his part and, therefore, the order dated 9th February, 2010 be recalled and fresh notices to the respondent Nos. 44 and 45 and the legal representatives of respondent Nos. 13 and 47 be issued is concerned, I am unable to accept the submission. The appellants having chosen to delete the aforesaid respondents in an appeal preferred against the decree passed in the suit for partition, after a period of over six months from the deletion of the said respondents from the cause title, cannot now seek to recall the order dated 9th February, 2010, which has been already implemented by deletion of the said respondents from the cause title.

10. In view of the above discussion, I hold that on account of deletion of respondent Nos. 3, 4, 13, 44 and 45 from the cause title, the appeal is incompetent and stands abated as a whole. MCA Nos. 607/2010 and 608/2010 stand dismissed. Since the appeal itself is incompetent and stands abated, the question of permitting the appellants to bring the legal representatives of respondent No. 1, does not arise. Consequently, MCA No. 610/2010 also stands dismissed. In view of the above, Second Appeal No. 68/2010, MCA Nos. 607/2010, 608/2010 and 610/2010 stand dismissed with no order as to costs.