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Shyam Narain Ahir And Others v. Ganesh Rai & Another

Allahabad High Court

Dec 3, 1977

Judgment

Subsequent
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Factual and Procedural Background

The plaintiff-respondent claimed to be the occupancy tenant of the plots before Zamindari abolition, later becoming Sirdar. He alleged that the defendants-appellants and defendant-respondent No. 2 had no connection with the land; that the appellants' father had been forcibly dispossessing part of the plot in 1358 Fasli but had been dispossessed by a decree under section 180 of the U.P. Tenancy Act dated 16-7-1941; and that the appellants later manipulated Patwari records. After an application for correction was dismissed, the plaintiff filed suit seeking injunction against the appellants' interference with possession or, alternatively, possession.

The defendants contested, claiming their father had been a subtenant, that they inherited his tenancy (later acquiring Adhivasi and Sirdari rights), and that compensation proceedings under section 240-A of the Zamindari Abolition & Land Reforms (ZA & LR) Act had been finalised, extinguishing the plaintiff's rights. The learned Munsif found for the plaintiff, holding that the appellants' father was not a subtenant, that the plaintiff was Sirdar and in possession, and that compensation proceedings were ineffective because they were proceeded with despite a stay application. The Civil Judge, Ghazipur, affirmed the Munsif's decree. The defendants appealed to this Court (a second appeal).

During the appeal, appellant No. 1 (Shyam Narain Ahir) was shown to have died in 1970. The plaintiff's counsel later filed to admit that fact; the plaintiff alleged the remaining appellants were not Shyam Narain's legal representatives (Shyam Narain had left ten sons who were not impleaded). The remaining appellants accepted that the sons were not impleaded and offered no objection if the sons were brought on record. This Court ordered (25-8-1977) that Shyam Narain's name be deleted from the record and that this be brought to the bench's notice.

Legal Issues Presented

Whether the death and deletion of one appellant (Shyam Narain) abates that appellant's appeal and thereby renders the appeals of the remaining appellants incompetent.
Whether this Court may proceed under Order 41 Rule 4 CPC to decide the appeals of the remaining appellants despite the abatement of one co-appellant.
Whether allowing the remaining appellants to continue would give rise to two inconsistent decrees in respect of rights derived from a common source.
On the merits, whether the appellants had acquired Sirdari rights by (a) being recorded as occupants in 1356 Fasli (section 20(b) ZA & LR Act), (b) cultivatory possession in 1359 Fasli and rights under the U.P. Land Reforms (Supplementaries) Act, 1952, or (c) finalisation of compensation proceedings under section 240-A ZA & LR Act which extinguished the plaintiff's rights.

Arguments of the Parties

Plaintiff-Respondent's Arguments

The death of Shyam Narain resulted in abatement of his appeal; because the decree against the defendants is joint and several, the abatement of one appellant's appeal makes the remaining appellants' appeal incompetent or at least dangerous to permit, as it could create inconsistent decrees.
The Court should not permit the remaining appellants to continue the appeal without the legal representatives of the deceased being impleaded.
On merits, findings of fact below (that the appellants were not occupants in the relevant Fasli years and had not acquired Sirdari/Adhivasi rights) are findings of fact not open to challenge in a second appeal.

Defendants-Appellants' Arguments

The remaining appellants, as co-heirs/joint Hindu family members, represent the entire inheritance and therefore the appeal remains competent despite the death of one appellant; deletion of the deceased's name was effectively allowing the remaining appellants to continue.
Alternatively, this Court has power under Order 41 Rule 4 CPC to proceed with the appeals of the remaining appellants and to set aside the entire decree.
On merits, appellants argued (i) entries showing them as occupants in 1356 Fasli (section 20(b) ZA & LR) established Adhivasi rights, (ii) cultivatory possession in 1359 Fasli and rights under the U.P. Land Reforms (Supplementaries) Act, 1952 entitled them to remain in possession, and (iii) compensation proceedings finalized under section 240-A ZA & LR Act extinguished the plaintiff's rights.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ram Awalamb v. Jata Shanker, 1968 AWR 731	Hindu joint family notions not applicable to tenure-holders under Zamindari Abolition Act; heirs inherit as tenants in common.	Used to reject appellants' contention that other brothers represented the deceased's estate; court held the deceased's sons (not the brothers) would be his legal representatives.
Sri Chand v. Jagdish Prasad Kishan Chand, AIR 1966 SC 1427	An appellate court has no power under Order 41 Rule 4 CPC to proceed and reverse a decree affecting all plaintiffs/defendants when all appealed and one dies and that part of the appeal abates.	Relied upon to hold that Order 41 Rule 4 CPC could not save the remaining appellants' appeal where all persons affected had filed appeals and one subsequently died (risk of inconsistent decrees).
Mahavir Prasad v. Jage Ram, (1971) 1 SCC 265 : AIR 1971 SC 742	Clarified scope of Order 41 Rule 4 CPC; distinguished earlier authorities (did not overrule Sri Chand).	Cited by appellants; Court observed Mahavir Prasad did not overrule Sri Chand and distinguished Rameshwar Prasad, concluding Order 41 Rule 4 applies only when all persons affected either do not appeal or are not impleaded.
Rameshwar Prasad v. Shyam Behari Lal, AIR 1963 SC 1901	Earlier authority on scope of appellate power (distinguished in later cases).	Recognised as a case that was distinguished in subsequent decisions; Court noted it had been relied upon but treated as distinguishable on facts.
Amba Prasad v. Mahboob Ali Shah, 1964 AWR 541	Authority cited for the proposition that entries in Fasli registers may be binding and cannot lightly be disregarded.	Appellants relied on it to argue the 1356F entry could not be disregarded; Court found the cited authorities not applicable because no recorded entry in the relevant Fasli years existed for the appellants or their father and oral evidence was disbelieved.
Mosim Ali v. Ganga Prasad, 1966 AWR 457	Similar authority on the weight of Fasli register entries.	Appellants' reliance noted; Court found the facts here differed (no names in records, only oral testimony) and thus the authority did not assist appellants.
Hari Nath v. Ram Pratap Singh, 1968 AWR 65	Another decision cited regarding evidentiary value of Fasli entries.	Not applied because Fasli entries in this case did not record the appellants or their father; the court treated the authorities as inapplicable to the facts before it.
Smt. Sonawati v. Sri Ram, 1968 AWR 1	Authority on Fasli entries and occupancy recordings.	Held not to cover the factual situation in the present matter (absence of recorded names; reliance only on oral evidence).
Sri Nath Singh v. Board of Revenue, U.P., 1968 AWR 722	Authority concerning land record entries and their evidentiary weight.	Cited by appellants but the court determined it did not apply because the relevant entries were not present and oral evidence was not accepted.
Bachhan v. Kankar, 1972 AWR 786	Recognised that a court can find an entry to be not genuine in appropriate circumstances.	Cited by plaintiff-respondent as authority that courts may disbelieve entries; the court noted the point but stated it need not decide that issue on the present facts.

Court's Reasoning and Analysis

The Court proceeded in two connected strands: first addressing procedural competence arising from the death of one appellant and then considering the merits of the appellants' contentions.

On procedure, the Court observed that the death of Shyam Narain had been brought to its notice and his name was ordered deleted from the record. The plaintiff argued that this resulted in abatement of Shyam Narain's appeal and, because the decree below affected all defendants from a common source (their father's alleged tenancy), the remaining appellants' appeal would be incompetent if the Court permitted it to proceed, as that could produce inconsistent decrees.

The Court examined the appellants' submission that (a) remaining appellants as joint-family members represented the deceased's estate and (b) alternatively Order 41 Rule 4 CPC empowered the Court to proceed despite the abatement. The Court rejected the joint-family contention by relying on Ram Awalamb v. Jata Shanker (1968 AWR 731), which held that joint Hindu family concepts do not apply to tenure-holders under the Zamindari Abolition Act and that heirs inherit as tenants in common; therefore, the deceased's brothers did not represent his share and only his sons would be his legal representatives.

Turning to Order 41 Rule 4 CPC, the Court analysed the authorities. It accepted the principle in Sri Chand v. Jagdish Prasad (AIR 1966 SC 1427) that an appellate court cannot proceed under Order 41 Rule 4 to reverse a decree affecting all plaintiffs/defendants when the decree rests on a ground common to all and one of them dies so that his appeal abates. The Court considered Mahavir Prasad v. Jage Ram (1971) but concluded that it did not overrule Sri Chand; rather it distinguished prior cases and confined the application of Order 41 Rule 4 to situations where all persons affected either did not appeal or were not impleaded. Because, in the present case, all persons affected by the decree had filed appeals and only one died subsequently, the Court held Order 41 Rule 4 CPC did not permit it to proceed so as to reverse the decree in respect of all the appellants.

The Court therefore found merit in the plaintiff's contention that allowing the remaining appellants to continue would risk two inconsistent decrees: a final decree against the deceased (if his portion of the appeal abated) and a reversed decree against the surviving appellants (if their appeal succeeded). On that basis the Court held the remaining appellants' appeal to be incompetent.

On the merits, the Court reviewed the three substantive grounds asserted by appellants for Sirdari rights: (1) recorded occupancy in 1356 Fasli under section 20(b) ZA & LR Act, (2) cultivatory possession in 1359 Fasli and rights under the U.P. Land Reforms (Supplementaries) Act, 1952, and (3) finalisation of compensation proceedings under section 240-A ZA & LR Act extinguishing the plaintiff's rights.

The Court noted that the lower courts had found, as a matter of fact, that neither the appellants nor their father were recorded in 1356F or 1359F and that the appellants relied only on oral evidence which was disbelieved. The Court therefore held no substantial question of law arose in respect of points (1) and (2) that would permit interference in a second appeal. Regarding point (3), the Court accepted the lower courts' finding that compensation proceedings had been conducted despite a stay application before the Assistant Collector and that those proceedings were therefore void/illegal; this fact was not disputed. Consequently, no question of law arose on that point either. Having concluded that the appeal was both procedurally incompetent and without merit, the Court dismissed it.

Holding and Implications

APPEAL DISMISSED.

Direct effect on the parties:

The decree of the Munsif, as affirmed by the Civil Judge, stands confirmed as the second appeal has been dismissed.
The appeal was dismissed with costs awarded to respondent No. 1 (the plaintiff-respondent), as stated in the opinion.

Broader implications:

The Court applied existing authorities to hold that Order 41 Rule 4 CPC could not be used to avoid abatement where all persons affected had appealed and one later died, and reaffirmed that joint Hindu family notions do not import representation of a deceased appellant's share in Zamindari Abolition Act tenures. The opinion does not purport to establish a new precedent beyond applying and distinguishing cited authorities.

K.J.C

Show all summary ...

Mahavir Singh, J.:— This is a second appeal by the defendants against the judgment and decree of the Civil Judge, Ghazipur, by which he confirmed the decree passed by the Munsif in favour of the plaintiff-respondent No. 1.

2. The allegations of the plaintiff-respondent were that he was an occupancy tenant of the plots in question prior to the abolition of Zamindari and had become Sirdar afterwards, that the defendants-appellants and defendant-respondent No. 2 had no connection with the land in question, that in 1358 Fasli, their father had forcibly taken possession of a part of plot in question but he had been dispossessed in a suit filed by him under section 180 of the U.P Tenancy Act by a decree passed on 16-7-1941, that later these appellants somehow manipulated their names in the Patwari papers, that on knowing about the same he moved an application for correction but the same was dismissed and so he had to file the suit. He prayed for an injunction to restrain the appellants from interfering with his possession or in the alternative for possession if the court found that he was not in possession. The defendant-appellants and the respondent No. 2 contested the suit. They alleged that their father was a subtenant of the plots in question and after his death they inherited the same and remained in possession, that they acquired Adhivasi rights under the ZA & LR Act and later they became Sirdars. It was also alleged by one of the defendant-appellants that compensation proceedings were finalised before the Assistant Collector under section 240-A of the ZA & LR Act and so also the plaintiff-respondent no longer had any right left in the property in question. As regards the decree under section 180 of the U.P Tenancy Act it was alleged that it was not acted upon and the appellants continued to remain in possession. The learned Munsif held that the father of the appellants and respondent No. 2 was not a sub-tenant and so they had not acquired any Adhivasi rights or Sirdari rights and that the plaintiff-respondent was the Sirdar of the land in question and in possession as such. He also held that the plaintiff-respondent had not lost any of the rights by the proceedings under section 240-A of the UP ZA & LR Act because they had been proceeded with inspite of the stay order passed on his application to that effect. Accordingly he decreed the suit with costs.

3. On appeal the learned lower appellate Court affirmed the findings of the learned Munsif on all the points and so dismissed the same. Thereafter, the defendants filed this second appeal in this Court. They challenged the findings of the courts below and contended that they have taken an erroneous view of the facts and law.

4. During the pendency of the appeal, one of the appellants, then appellant No. 1, Shyam Narain Ahir died in 1970. In 1974, when the matter was brought to the notice of this Court, on this appeal having come up for hearing, a statement was made by the plaintiff-respondent's counsel that Shyam Narain, who was then appellant No. 1 had died in 1970. The counsel for the respondent then took time and later moved an application admitting this fact that Shyam Narain had died on 13-3-1970 but it was alleged that even after his death the right to sue survived to the remaining defendant-appellants who were his legal representatives.

5. The plaintiff-respondent filed a counter-affidavit alleging that the remaining appellants were not the legal representatives of Shyam Narain, that Shyam Narain had left 10 sons as heirs and none of them had been impleaded. The remaining appellants admitted this fact and they prayed that they had no objection if the sons of the deceased Shyam Narain are brought on record. At this, this Court passed an order on 25-8-1977 that the name of Shyam Narain, appellant No. 1 be deleted and this fact be brought to the notice of the Bench hearing the appeal.

6. The learned counsel for the plaintiff-respondent now contends that the effect of this order is that the appeal of Shyam Narain abated and that as the decree of the plaintiff-respondent against the respondent was joint and several the appeal of the remaining appellants would also abate or, in any case, would not be competent. It is also pointed out that if it is not done, then there is possibility of two inconsistent decrees coming in existence, one against the deceased Shyam Narain and the other against the remaining appellants.

7. The learned counsel for the appellants has made two submissions. In the first instance he contends that if the Court allows one of the legal representatives to continue with the appeal after the death of one of the appellants and without bringing on the record the representative of the deceased, that heir represents the entire inheritance and so the appeal remains competent. It is pointed out that the fact that this Court had allowed the name of Shyam Narain appellant to be deleted implied that the court had allowed the remaining appellants to continue with the appeal. This contention is not acceptable at all. The court had not permitted any of the appellants to continue with the appeal on behalf of the deceased. Actually none of the remaining appellants is the legal representatives or heirs of the deceased. This is admitted that the deceased left 11 sons. The learned counsel for the appellants contends that as members of the joint Hindu family they would represent the entire estate. But this contention has not been upheld by this Court in Ram Awalamb v. Jata Shanker, 1968 AWR 731. It was held in that case that the notions of Hindu law about the joint Hindu family are not applicable to the tenure holders under the Zamindari Abolition Act and here the heirs inherited the property as tenants in common. So the other brothers of Shyam Narain deceased are not the heirs of Shyam Narain. They represent their own shares and only the sons of Shyam Narain would be heirs or his legal representatives.

8. It was next contended that, in any case, under Order 41 Rule 4 CPC this Court will have power to decide the appeal of the remaining appellants and could pass an order setting aside the entire decree. The learned counsel for the plaintiff-respondent, however, relied upon the case of Sri Chand v. Jagdish Prasad Kishan Chand, AIR 1966 SC 1427 in which it was held that an appellate court had no power to proceed with an appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under Order 41 Rule 4 when the decree proceeds on a ground common to all the plaintiffs or defendants, if all the plaintiffs or the defendants appeal from the decree and any one of them dies and the appeal abates so far as he is concerned.

9. Learned counsel for the appellants then relied upon Mahavir Prasad v. Jage Ram, (1971) 1 SCC 265 : AIR 1971 SC 742 for the proposition that the appellate court had power to proceed under Order 41 Rule 4 CPC in such cases. It is contended that this case being later than the case of Sri Chand v. Jagdish Prasad (Supra) should be given preference. This contention is also not correct. Their Lordships in Mahabir Prasad's case (Supra) had not overruled the decision of Sri Chand's case (Supra). They had rather distinguished the case of Rameshwar Prasad v. Shyam Behari Lal, AIR 1963 SC 1901. This case was also relied upon in the case of Sri Chand v. Jagdish Prasad (Supra). Distinguishing that case, their Lordships held that Order 41 Rule 4 CPC would apply only when all the persons affected by the decree either do not appeal or are not impleaded as respondents. Obviously, therefore, it would apply to those cases where all the defendants or the plaintiffs, as the case may be, had filed an appeal. Here the facts are the same as reported in 1966 SC 1427. All the persons effected by the decree had filed an appeal and it is only one of them who had died later. So the provisions of Order 41 Rule 4 would not be applicable.

10. The next question is whether on account of the abatement of the appeal of Shyam Narain, the appeal by the remaining appellants becomes incompetent and so has to be dismissed, the learned counsel for the appellants contends that the plaintiff-respondent claimed only injunction against the appellants treating them to be trespassers and so it would make no difference if the decree remains confirmed against one of the trespassers and the remaining alleged trespassers can continue the appeal, the learned counsel for the plaintiff-respondents, however, points out that the matter is not so simple as that. The present appellants and the deceased had claimed rights from a common source. They had alleged that their father was the sub-tenant and they had inherited the tenancy rights from him and so they had become first Adhivasi and then Sirdars. The court below had given a finding against these appellants and Shyam Narain on these points. So on the decree against Shyam Narain being finalised it would mean that the father of the appellants had not acquired any rights in the land and so thus too could not inherit anything. In case the appeal of the present appellants is allowed, it would be only by a reversal of those findings of facts and of law. Thus there would clearly be two inconsistent decrees in existence simultaneously. As held in Shri Chand v. Jagdish Prasad (Supra), in such a case where there is possibility of two inconsistent decrees coming into existence, then the appeal of the remaining appellants becomes incompetent. Thus the contention of the plaintiff-respondent has a force that this appeal by the remaining appellants becomes incompetent and so has to be dismissed.

11. Even otherwise the appeal has no force on merits at all. The appellants had claimed Sirdari rights on the following three grounds:—

(1) They were recorded as occupant in 1356 Fasli and so under section 20(b) of the ZA & LR Act they had become Adhivasi of the land and were entitled to remain in possession thereof.

(2) They were in cultivatory possession in 1359 Fasli and also under the U.P Land Reforms (Supplementaries) Act, 1952 they were entitled to remain in possession.

(3) The compensation proceedings under section 240-A of the ZA & LR Act having become final, the rights of the plaintiff-respondent No. 1 became extinct and so also he had no right to sue.

12. On behalf of the plaintiff-respondent it is contended that it was a question of fact whether the appellants were occupants in 1356 Fasli or 1359 Fasli and that finding of fact is not open to challenge in Second appeal.

13. Learned counsel for the appellants, however, contends that once an entry is made in 1356F. it was not open to the court to disregard it by giving a rinding of fact otherwise. Reliance was placed on Amba Prasad v. Mahboob Ali Shah, 1964 AWR 541, Mosim Ali v. Ganga Prasad, 1966 AWR 457, Hari Nath v. Ram Pratap Singh, 1968 AWR 65, Smt. Sonawati v. Sri Ram, 1968 AWR 1 and Sri Nath Singh v. Board of Revenue, U.P, 1968 AWR 722. On the other hand, the learned counsel for the plaintiff-respondent contends that in view of the ruling of the Hon'ble Supreme Court in Bachhan v. Kankar, 1972 AWR 786 it is open to a court to give a finding that the entry was not a genuine one. We need not, however, go into the merits of this case law. Obviously the case of the appellants is not covered by any of the ruling cited abvove. No name of the appellants or their father was recorded either in 1356F. or 1359F. Only oral evidence was led, which was not believed. So, no question of law was involved on the points Nos. 1 and 2.

14. As regards point No. 3 also the finding was that these proceedings were finalised inspite of a stay order given by the Assistant Collector himself and, therefore, the order, if any was void and illegal. This fact is also not disputed before us. Therefore, no question of law is involved even on this third point. Hence there is no force on the merit also. Thus in either view of the case the appeal has no force and is accordingly dismissed with costs to respondent No. 1.