1. Mr. Jalil Ahmed for the respondent in this appeal, raised a preliminary objection as to the maintainability of this appeal on the ground that since two of the respondents, namely, respondents 5 and 6, died and the appeal has abated against them, the whole of the appeal will abate against all the other respondents.

2. In order to understand the significance of this objection, it is necessary to state a few facts. The respondents are the owners of two survey numbers, 34/1 and 34/2, which are makthas or crown grants, known by the names of Mohd. Fiyazi, and Modlam respectively situated in Boinapalli village. In 1924, the then Nizam's Government requisitioned the property on behalf of the Indian Army for building a new range for Musketery Practice. The Makiedars made several representations for several years, and ultimately the Government decided to acquire the same under the Hyderabad Land Acquisition Act, in or about 1351 F (1941-42 A. D.). This decision was implemented by the issue of a notification under Section 5 of the Hyderabad Land Acquisition Act, published in the Gazette No. 26 Part I dated 7-7-1366 F. (1947 A. D.). The claimants-maktedars submitted an application on 16-5-1950 claiming compensation for Ac. 98-00 of land and for abhkari trees at the rate of Rs. 1200 an acre.

The Collector however awarded compensation at the rate of Rs. 200 per acre on the ground that the land was already in the occupation of the Government in 1924 and that the claimants had confirmed that position, BO that the compensation which the claimants were entitled to was the value of the land at the time when the initial possession was taken in 1924. The Collector stated that the fact that the claimants applied for determination and payment of reasonable compensation implies their consent to the action taken by the Government in taking possession of the property. Therefore, the valuation of the land will have to be assessed on the basis of the rates prevalent at the time of taking over possession. At this rate and adding the cost of trees and 15 per cent solatium, he awarded compensation of Rs. 22,798-12-0 as compensation for 89 acres and 5 guntas, which according to the Collector was the extent of land acquired by the Government, In appeal, the District Judge found that the extent of the land was Ac, 98-10 guntas and awarded compensation at the rate of Rs. 1000 per acre. He also allowed compensation for 200 toddy trees at Rs. 10 per tree and 600 Sendhi trees at Rs. 4 per tree. He also allowed disturbance charges at 15 per cent and interest at 6 per cent per annum. It was directed that the amounts should be distributed to the plaintiffs according to the shares specified in the plaint.

3. On these facts, the question before us is whether the appeal survives after the abatement against respondents 5 and 6. It is in our view unnecessary to review exhaustively the number of cases on this point decided by the various High Courts having regard to the authoritative pronouncement of their Lordships of the Supreme Court in State Of Punjab v. Nathu Ram., . In that case, the test that has been laid down is stated by Raghubar Dayal, J., at page 836 (of SCJ) = (at p 90 of AIR) in this way:

"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 appeals may lead to the Court's coming to a decision which would 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 subject-matter 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, will be ineffective, that is to say, it could not be successfully executed.

There has been no divergence between the Courts about the Court's proceeding with the appeal between the respondents other than the deceased respondent, when the decree in appeal was not a joint decree in favour of all the respondents. The abatement of the appeal against the deceased respondent, in such a case, would make the decree in his favour alone final, and this can in no circumstances have a repercussion on the decision of the controversy between the appellant and the other decree-holders or on the execution of the ultimate decree between them."

4. In this case, as we have observed, the two survey numbers are Crown-grant Maktha lands which according to the Atiyat law and Circular No. 17 of 1312 F., issued on the basis of a firm an of H. E. H. the Nizam, could not be bifurcated or divided, mortgaged, gold or in any manner dealt with. When the Government acquired such a land, it was acquired as a whole. None of the holders though entitled to the income and enjoyment thereof in certain proportion to their shares, could not partition it or sell it. Even in their plaint before the Collector they stated:

"There is no dispute among the petitioners about the distribution of compensation amount and interest; they would get the same according to their shares."

"Awarded Rs. 22,798-12-0 as compensation of the land measuring 89 acres and 5 guntas for survey numbers 34/1 and 34/2 situated in Boinpalli village. The apportionment of the amount of compensation will be made in accordance with the expressed share of the claimants contained in the statement vide page 5 of file and Para 15 of the Note file."

On the basis of this, Rs. 22,798-12-0 compensation payable to the owners was apportioned.

5. The learned advocate for the Government at first sought to contend that none of the deceased respondents had any interest in S. No. S4/2; but that appears to be incorrect, because respondent No. 6 Fazlullah, is also interested in S. No. 34/2. He again contended that the decree is not a joint and inseparable decree. It is a separate decree in favour of each of the owners and as such, abatement against one of them would not have the effect of abatement against all. The test in our view is not whether the decree is joint and separable, as indeed any decree in respect of compensation for land acquisition is bound to reflect the interest of each person in the money compensation. In fact, as pointed out by the learned Government Pleader, Sections 9, 18 and 22 of the Hyderabad Land Acquisition Act contemplate apportionment of compensation awarded amongst the persons interested. But that is far from saying that merely because apportionment has taken place the appeal does not abate. An appeal abating against one of such persons abates the appeal against the whole. Order 22, Rule 4 C. P. C. is in the following terms:

"(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 Sub-rule (1), the suit shall abate as against the deceased defendant except as hereinafter provided.

(4) .............................."

This provision has been made applicable to appeals by Order 22, Rule 11 C. P. C. For determining in what cases in which a suit or appeal is held to abate as a whole, the test is whether the interest of the defendants or respondents in the suit or appeal is joint and indivisible and whether if the appeal was allowed, there would be two inconsistent decrees in the same case with respect to the same subject matter. Their Lordships in the case cited above while holding that the apportionment between two joint holders without Riving a notice to one of them merely on the basis that their interest was specified in the revenue records would not bind them unless notice was given to the person concerned, nonetheless observed at page 91:

"The decree in the appeal will have to determine not what Nathuram's share in this compensation is, but what is the correct amount of compensation with respect to the land acquired for which this compensation has been awarded by the arbitrator. The subject-matter for which the compensation is to be calculated is one and the same. There cannot be different assessments of the amounts of compensation for the same parcel of land. The appeal before the High Court was an appeal against a decree jointly in favour of Labhu Ram and Nathu Ram. The appeal against Nathu Ram alone cannot be held to be properly constituted when the appeal against Labhu Ram had abated. To get rid of the joint decree, it was essential for the appellant, the State of Punjab, to impaled both the joint decree-holders in the appeal. In the absence of one joint decree-holder, the appeal is not properly framed. It follows the said appeal against Nathu Ram alone cannot proceed."

6. The above passage indicates the rationale of the judgment, which is that where the subject matter of the compensation is the same, any one of the joint owners not being made a party or not being a party by reason of any abatement or ceasing to be a party due to death, the amount of compensation awarded would be considered to be different to that which would have been given with all the parties owning the land being before the Court. In the absence of any one of them, the appeal itself would not be properly framed. The principle that every joint owner of the land is the owner of every cent of the land is well known and in the circumstances, it is obvious that the compensation awarded would be to apply this analogy for each party, so that if any one of the owners is absent or is not a party or ceased to be a party, the compensation for that piece would not represent the compensation to that parcel of the land. A perusal of the decree passed by the District Judge would show that the compensation was awarded for the entire land at a particular rate and though, because all of them are agreed the compensation was directed to be divided amongst the share holders, nonetheless in fact and in reality the compensation was one which was for the subject matter of the appeal, namely, the entire mukhta land comprising survey numbers 34/1 and 34/2. As we have already pointed out, the 6th respondent is interested in both the survey Nos. 34/1 and 34/2. In the circum stances, any abatement of appeal against him would make the appeal as against the other claimants incompetent. In the circum stances, therefore, by reason of the abatement against respondent Nos. 5 and 6, the entire appeal abates and is accordingly dismissed. Advocate's fee Rs. 500.