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Shibban v. Allah Mehar
Summary of Opinion
Factual and Procedural Background
The plaintiffs sued four defendants for possession and injunction, alleging that the land in question was their graveyard and that the defendants had wrongfully enclosed it. The defendants claimed the land was a waste piece of ground, that the enclosure was an old one, and that it had been made with the zamindar's permission.
The trial Court found the facts in favour of the plaintiffs and decreed against all four defendants. Two of the four defendants appealed to the lower appellate Court and impleaded the other two as pro forma respondents. The common ground in the memorandum of appeal was that the plaintiffs had no right to maintain the suit because they had no interest in the land.
The lower appellate Court allowed the appeal on the ground that the plaintiffs had to establish dedication or public user and therefore had no right to have the enclosure demolished; it set aside the decree below and dismissed the suit, giving costs to the defendants in both Courts.
The plaintiffs then appealed to the High Court. A Judge of the High Court framed an issue on the duration of the enclosure; the finding went in the plaintiffs' favour. One original defendant, Niadar, who had not appealed to the lower appellate Court and had been a pro forma respondent there, died; a belated attempt to bring his heirs on record failed. The learned Judge held that the appeal abated as against Niadar but decreed the appeal against the other three defendants.
The central procedural question before the Court was whether the learned Judge was bound to dismiss the appeal against the remaining defendants because it had abated as against Niadar.
Legal Issues Presented
- Whether the abatement of an appeal as against a deceased defendant (whose heirs are not brought on record) requires dismissal of the appeal as to all other defendants.
- Whether, in a suit for possession and injunction against trespassers, the death of one trespasser (with heirs not brought on record) prevents the Court from passing a decree for possession and injunction against the other trespassers who are before the Court.
Arguments of the Parties
Plaintiffs' Contentions
- The land in dispute was their graveyard.
- The defendants were trespassers who wrongfully enclosed the graveyard; plaintiffs sought possession and an injunction to remove the enclosure.
Defendants' Contentions
- The land was waste ground, not a graveyard.
- The enclosure was old and had been made with the zamindar's permission.
- In the appeals, the defendants (appellants) contended that the plaintiffs had no interest in the land and therefore no right to maintain the suit.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ram Dei v. Jurawan Misr A.I.R. 1930 All. 762 | That under Order 22, Rule 4(3) an appeal can abate as against a deceased defendant only, and only when it is impossible to proceed in the absence of the deceased defendant's heirs does the whole suit fail. | The Court accepted and followed this principle, holding that abatement affects only the deceased defendant and does not automatically preclude decrees against other defendants in a suit for possession and injunction against trespassers; accordingly the appeal was dismissed with costs (i.e., the plaintiffs could obtain relief against the remaining defendants despite abatement as to one). |
Court's Reasoning and Analysis
The Court analyzed the effect of a defendant's death on an ongoing appeal under Order 22, Rule 4(3). It agreed with the reasoning in Ram Dei v. Jurawan Misr that an appeal abates only as against the deceased defendant and that the whole suit fails only where it is not possible to proceed in the absence of the deceased's heirs.
The Court rejected characterizing a dismissal under these circumstances as an "abatement of the suit in its entirety" as a misnomer. It explained that, although some prior rulings had loosely used that expression, the correct approach is to treat abatement as affecting only the deceased party unless the nature of the suit makes continuation impossible.
The Court distinguished categories of suits in which absence of a party makes continuation impossible (e.g., partition suits requiring all necessary parties, certain joint-mortgage or joint-money-decree situations, partnership suits, or suits to avoid deeds involving multiple title claimants). It held that those types of cases are not analogous to a suit for possession and injunction against trespassers.
Specifically for possession-and-injunction suits against trespassers, the Court reasoned that a decree for possession and injunction against some trespassers is not inherently inconsistent with dismissal as against others; a plaintiff may obtain relief against defendants who are before the Court even if one trespasser has died and his heirs are not before the Court. Any decree granted in such circumstances would operate against the defendants before the Court in their personal capacity.
Holding and Implications
APPEAL DISMISSED (with costs).
Direct effect on the parties: The Court held that the plaintiffs could obtain a decree for possession and injunction against the defendants who remained before the Court despite the appeal's abatement as to the deceased defendant (Niadar). The decree would be personal against those defendants and the appeal is dismissed with costs.
Broader implication stated by the Court: In suits for possession and injunction against trespassers, the death of one trespasser (whose heirs are not on the record) does not necessarily prevent the Court from granting relief against the other trespassers before it. The Court distinguished this situation from other categories of suits where the absence of a necessary party can make continuation impossible.
1. This is a defendants' appeal arising out of a suit for possession and injunction brought by the plaintiff's against four defendants treating them as trespassers. The plaintiff's case was that the land in question was their graveyard and the defendants wrongfully enclosed it. The defence was that the land was not a graveyard at all, but was a waste piece of ground which had been enclosed by the defendants with the permission of the zamindar and that the enclosure was an old one. The first Court found the facts in favour of the plaintiffs and decreed the claim against all the four defendants. Two of the four defendants appealed to the lower appellate Court and impleaded the other two defendants as pro forma respondents. No doubt the ground taken in the memorandum of appeal was one common to all the defendants, namely, that the plaintiffs had no right to maintain the suit as they had no interest in the land. The lower appellate Court allowed the appeal holding that the plaintiffs had to establish dedication or public user and had therefore no right to get the enclosure demolished and then remarked:
The result is that the decree of the lower Court cannot stand. I set aside the decree of the Court below and dismiss the suit. The defendants will get their costs from the plaintiffs in the both Courts.
2. The decree of the lower appellate Court was in the same terms. The plaintiffs appealed to this High Court and a learned Judge of this Court sent down an issue for a clear finding as to the length of the time during which the enclosure had been in existence. The finding that was returned was in favour of the plaintiffs but it appeared that one of the original defendants, namely Niadar, who had not appealed to the lower appellate Court and who was made a pro forma respondent in that Court, died and a belated attempt to bring his heirs on the record in the High Court failed. The learned Judge accordingly held that the appeal abated as against the deceased Niadar, but he decreed the appeal against the other three defendants. It is not necessary to consider whether the lower appellate Court in fact set aside the decree of the first Court and dismissed the suit as against all the defendants giving them all costs of the suit or whether it only set aside the decree and dismissed the suit as against the appellants. Before the learned Judge of the Court it was assumed that the decree was in favour of all the defendants. The lower appellate Court had certainly power to pass a decree in favour of all the defendants, but at the same time it was not bound to do so.
3. The only question therefore, that arises in appeal is whether the learned Judge was bound to dismiss the appeal of the plaintiffs against the other defendants as well inasmuch as it had abated against Niadar. The learned Judge has relied on the recent case of this Court in Ram Dei v. Jurawan Misr A.I.R. 1930 All. 762, in which it has been very clearly pointed out by the learned Judges constituting the Bench that under Order 22, Rule 4(3) an appeal can abate as against a deceased defendant only but it is only when it is not possible to go on with the suit in the absence of the deceased defendant's heirs that the whole suit fails. They have rightly pointed out that it is a misnomer to characterize the dismissal under such circumstances as an abatement of the suit in its entirety. No doubt this expression had been loosely used in some previous oases, but we fully concur in the view expressed in that judgment; that it is misnomer to characterize a dismissal as an abatement of a suit in appeal in its entirety. The suit really abates against the deceased whose heirs are not brought on the record and in certain cases it may become impossible to go on with it any further, which would necessitate the dismissal of the suit. Rulings in which a suit for partition has been held to fail in the absence of necessary parties of suits in which joint mortgage decree or money decrees have been passed are not directly in point, nor are cases in which partners are suing jointly. Similarly cases where suits are filed for the avoidance of a deed of gift or sale-deed, under which several defendants are claiming title, would be distinguishable. But where a suit is brought for possession of immovable property against certain trespassers and an injunction also is claimed against them, it cannot be said that a decree for possession and injunction against some of the trespassers is so contradictory to a dismissal of the suit as against some others that it cannot be passed. It may well be that a plaintiff is prevented from objecting to the entry of a particular defendant with whom he may afterwards amicably settle the matter, but that is no ground to refuse him similar relief as against other persons to whom also he objected. Had a suit been brought against these trespassers only without impleading some of the other trespassers it could not have been dismissed on the simple ground that the other trespassers who were also either in possession or interfered with the plaintiffs' possession had not been impleaded.
4. We are satisfied that in a suit for possession and injunction against trespassers the mere fact that one of the trespassers has died and his heirs have not been brought on the record does not make it impossible to pass a decree in favour of the plaintiffs against the trespassers who are before the Court. Such a decree would, of course, be against the defendants in their personal capacity. The appeal is accordingly dismissed with costs.
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