DELHI DEVELOPMENT AUTHORITY versus DIWAN CHAND ANAND & ORS on 11 July 2022

[2022] 18 S.C.R. 1053

DELHI DEVELOPMENT AUTHORITY

v.

DIWAN CHAND ANAND & ORS.

(Civil Appeal No. 2397-2398 of 2022)

JULY 11, 2022

[M. R. SHAH AND B.V. NAGARATHNA, JJ.]

Code of Civil Procedure, 1908 : Order 22 – Abatementofappeal – Nature and extent of the abatement – Effect of abatementof the appeal against each of the respondents in case of multiplerespondents – Suit filed by two co-owners-plaintiffs and rest of theco-owners joined as defendants as proper parties, for declarationand permanent injunction and challenging the acquisitionproceedings under the Land Acquisition Act – Trial court decreedthe suit holding that the Notifications ceased to exist, and thedefendants were restrained from dispossessing the plaintiffs andthe other co-owners from the land notified for acquisition – Appealby the appellant-DDA – Some of the respondents not served as someof them had died – Appeal dismissed by the High Court as havingabated for failure to bring on record the legal representatives ofsome of the deceased respondents – Review petition there againstalso dismissed and refusal to recall the order passed by the HighCourt – On appeal, held: Appeal as a whole cannot be treated asabated merely for failure to substitute the legal representative ofsome of the co-shares/co-owners-respondents who died duringpendency of the appeal – On facts, the entire estate was representedthrough original plaintiffs in which even the co-sharers/ co-ownerswere also joined as defendants as proper parties – While consideringwhether the suit/appeal has abated due to non-bringing the legalrepresentatives of plaintiffs/defendants or not, the Court has toexamine if the right to sue survives against the surviving respondents– Thereafter, the appellate court has to consider the question whethernon-bringing the legal representatives of some of the defendants,the appeal could have proceeded against the surviving respondents– While passing the impugned order, the High Court neitherconsidered the relevant provisions of CPC namely Order 22 Rule 1to 11 nor held any enquiry – Order passed by the High Courtdismissing the appeal as a whole as having abated is set aside.

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AAllowing the appeals, the Court

HELD: 1.1 The nature and extent of the abatement in agiven case and the decision to be taken thereon will depend uponthe facts of each case and, therefore, no exhaustive statementcan be made either way and that the decision will ultimately dependBupon the fact whether the decree obtained was a joint decree ora separate one. This question cannot and should not also be testedmerely on the format of the decree under challenge or it beingone or the manner in which it was dealt with before or by theCourt which passed it. [Para 9.1][1078-B-C]

C1.2 As observed and held by this Court while consideringwhether the suit/appeal has abated due to non-bringing the legalrepresentatives of plaintiffs/defendants or not, the Court has toexamine if the right to sue survives against the survivingrespondents. Thereafter the Appellate Court has to consider thequestion whether non-bringing the legal representatives of someDof the defendants, the appeal could have proceeded against thesurviving respondents. Therefore, the Appellate Court has toconsider the effect of abatement of the appeal against each of therespondents in case of multiple respondents. The death of aplaintiff or defendant shall not cause the suit to abate if the rightEto sue survives; that if there are more plaintiffs or defendantsthan one, and any of them dies, and where the right to sue survivesto the surviving plaintiff or plaintiffs alone, or against the survivingdefendant or defendants alone, the Court shall cause an entry tothat effect to be made on the record, and the suit shall proceed atthe instance of the surviving plaintiff or plaintiffs, or against theFsurviving defendant or defendants (Order 22 Rule 2); that if whereone of two or more defendants dies and the right to sue does notsurvive against the surviving defendant or defendants alone, ora sole defendant or sole surviving defendant dies and the right tosue survives, the Court, on an application made in that behalf,Gshall cause the legal representative of the deceased defendantto be made a party and shall proceed with the suit. Where withinthe time limited by law no application is made under sub-rule 1 ofOrder 22 Rule 4, the suit shall abate as against the deceaseddefendant; and the provision of Order 22 shall also apply to theappeal proceedings also.[Para 9.1][1078-C-G]H

1.3 While considering whether the suit/appeal has abateddue to non-bringing the legal representatives of plaintiffs/defendants or not, the Court has to examine if the right to suesurvives against the surviving respondents. Thereafter theAppellate Court has to consider the question whether non-bringing the legal representatives of some of thedefendants, theappeal could have proceeded against the surviving respondents.Therefore, the Appellate Court has to consider the effect ofabatement of the appeal against each of the respondents in caseof multiple respondents.[Para 9.2][1078-H; 1079-A-B]

1.4 Applying the law laid down to the impugned judgmentand order dated 09.07.2007 passed by the High Court, it appearsthat the High Court has mechanically and without holding anyfurther enquiry which was required to be conducted, has simplydismissed the entire appeal as having abated due to non-bringingon record the legal representatives of some of the respondents– the original defendants who, as such, neither contested thesuit nor filed the written statements. It is observed that as suchthe original plaintiffs instituted the suit being co-owners/ co-sharers and for and on behalf of all the co-owners/co-sharers ofthe entire land sought to be acquired under the Land AcquisitionAct. [Para 9.3][1079-C-D]

1.5 In the instant case, when the original plaintiffs – twoco-owners instituted the suit with respect to the entire suit landjointly owned by the plaintiffs as well as defendants nos. 9 to 39and when some of the defendants/respondents in appeal died, itcan be said that estate is represented by others – more particularlythe plaintiffs/heirs of the plaintiffs and it cannot be said that onnot bringing the legal representatives of the some of the co-sharers – defendants – respondents in appeal the appeal wouldabate as a whole. While passing the impugned order dated09.07.2007, the High Court has neither considered the relevantprovisions of CPC namely Order 22 Rule 1 to 11 nor held anyenquiry which was required to be conducted. [Para 9.4, 9.5][1079-G-H; 1080-A]

1.6 The suit was filed challenging the acquisitionproceedings under the Land Acquisition Act, that too, with respect AB

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Ato the land in question. It was the specific case on behalf of theappellant and even the issue was framed by the trial court on thejurisdiction of the Civil Court to entertain the suit challengingthe acquisition proceedings under the Land Acquisition Act. Fromthe findings recorded by the learned Trial Court, it appears thatthough the learned Trial Court held the issue of jurisdiction inBfavour of the appellant herein, still thereafter it granted the reliefand decreed the suit which was the subject matter before theHigh Court. Thus, according to the appellant DDA – the judgmentand decree passed by the learned Trial Court was a nullity andwholly without jurisdiction. If that be so, then, another questionCwhich may be required to be considered is, when the originalplaintiffs/legal heirs are on record, can it be said that the entireappeal has abated, if in the appeal it is held that the decree was anullity and/or wholly without jurisdiction then the decree will benullity for all purposes. The said aspect is also required to bedetermined. [Para 9.6][1080-B-E]D

1.7 In any case what would have been the consequences ofnot bringing the legal representatives of some of the respondents/defendants who died during the pendency of the appeal andwhether the right to sue survives against the original plaintiffsand/or surviving respondents/defendants was to be consideredEby the High Court, which the High Court failed to consider in theinstant case. [Para 9.7][1080-E-F]

1.8 The impugned judgment and order passed by the HighCourt dismissing the appeal as a whole as having abated for notbringing the legal representatives of some of the respondents/Foriginal defendants who died during the pendency of the appealis hereby set aside. The High Court to consider the Appeal nowin accordance with law and on its own merits and in light of theobservations made, more particularly, the High Court shall haveto consider and hold an enquiry, whether, on the death of some ofGthe respondents in the appeal (defendants in suit) the right tosue against the remaining respondents-original plaintiffs/theremaining original defendants would survive or not including thefact that the estate is being represented by surviving original plaintiffs/heirs of the original plaintiffs/surviving defendants having a bearingon the enquiry to be held. [Para 10][1080-G-H; 1081-A]H

DELHI DEVELOPMENT AUTHORITY v. DIWAN CHANDANAND & ORS.

Mata Prasad Mathur vs. Jawala Prasad Mathur (2013)14 SCC 722; [2013] 1 SCR 1106; Kanhaiya Lal vs.Rameshwar, (1983) 2 SCC 260; Sadar Amarjit SinghKalra vs. Pramod Gupta (2003) 3 SCC 272, [2002] 5Suppl. SCR 350; State of Bihar vs. Dharender Kumar(1995) 4 SCC 229 : [1995] 3 SCR 857; EshaBhattacharjee vs. Managing Committee of RagunathpurNafar Academy and others (2013) 12 SCC 649 : [2013]9 SCR 782; Hemareddi vs. Ramachandra (2019) 6 SCC756 : [2019] 7 SCR 262; Sunkara Lakehminarassamavs. Sagi (2019) 11 SCC 787 : [2018] 14 SCR 222 –Referred to State of Punjab vs. Nathu Ram AIR 1962 SC 89 : [1962]SCR 636; A. ViswanathaPilliai and others vs. TheSpecial Tehsildar for Land Acquisition No. 4 and others(1991) 4 SCC 17 : [1991] 3 SCR 465; VenigallaKoteswaramman vs. Malempati Suryamba (2021) 4 SCC246 : 2021 (2) SCALE 170 – Relied on.

CIVIL APPELLATE JURISDICTION : Civil Appeal No.2397of 2022.

From the Judgment and Order dated 13.01.2012 of the High Courtof Delhi at New Delhi in Review Petition No.314 of 2008 in R.F.A.No.280 of 2001.

With

Civil Appeal No.2398 of 2022.

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[2022] 18 S.C.R.

ASanjay Poddar, Sr. Adv., Vishnu B. Saharya, Vivek B. Saharya,Viresh B. Saharya, Akshat Agarwal for M/s. Saharya & Co., Advs. forthe Appellant.

Shyam Divan, Sushil Dutt Salwan, Sunil Gupta, Sr. Advs., PramodDayal, Sudipto Sircar, Sushil Dutt Salwan, Nikunj Dayal, Ms. PujaBSharma, Karunakar Mahalik, Monaranjan Mishra, Gouranga Biswal, Ms.Meera Mathur, Advs. for the Respondents.

The Judgment of the Court was delivered by

M. R. SHAH, J.C1. Feeling aggrieved and dissatisfied with the impugned order dated09.07.2007 passed by the High Court of Delhi in RFA No.280 of 2001and the subsequent order dated 13.01.2012 passed by the High Court inR.P. No.314 of 2008 in the very same RFA No.280 of 2001, the originalappellant before the High Court – Delhi Development Authority (‘DDA’for short) has preferred the present appeals.D2. The facts leading to the present appeals in a nutshell are asunder:

The two plaintiffs, namely, Shri Diwan Chand Anand and Smt.Chanan Kanta Anand claiming to be the co-owners of the suit propertyfiled the suit before the Civil Court/learned Trial Court for declarationEand permanent injunction. The suit was filed challenging the acquisitionproceedings under the Land Acquisition Act, 1894 (hereinafter referredto as ‘the Act’). In the plaint defendant nos. 8 to 39 were impleadedalleging to be co-shares as proper parties to the suit. The original plaintiffno.2, Smt. Chanan Kanta Anand, was the wife of original defendantFno.8 – Shri Dharam Chand Anand. On the demise of the husband andwife (original plaintiff no. 2 & defendant no. 8) their children weresubstituted both as plaintiff nos. 2(i) to 2(x) and defendant nos. 8(i) to8(x). The suit was contested by the original defendant nos. 1 to 5 and 7including the appellant DDA. They filed the written statementcontroverting the claim of the plaintiffs. The suit was resisted on theGground that the Civil Court had no jurisdiction with respect to a challengeto the acquisition proceedings under the Land Acquisition Act. Otherdefendant nos. 8 to 39 did not file any written statement and they wereproceeded ex-parte vide order dated 22.03.1983 and 06.10.1983.

2.1 The learned Trial Court initially framed four issues as under:

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“Whether the notification dated 16.01.1969 under Section6 of the Land Acquisition Act with respect to the land in dispute isillegal due to non-satisfaction of the appropriate authority as tothe existences of the public purpose? OPP

2. Whether the defendants withdrew from the acquisitionproceedings? OPP

3. What is the effect of Letter dated 10.01.1967 andFebruary, 1968 filed as Annexure D and G to the Plaint? OPP.

4. Relief”

2.2 That thereafter one additional preliminary issue was framedon 12.12.1995 as under:

“Whether Civil Court has jurisdiction to go into the validityof the notification under Section 4 and 6 under Land AcquisitionAct?”

2.3 By judgment and decree dated 12.01.2000, the learned TrialCourt decreed the suit. It is the case on behalf of the appellant – DDAthat despite the learned Trial Court giving a finding that the Civil Courthad no jurisdiction to go into the question of validity and legality of thenotification under Section 4 of the Act, it decreed the suit and held thatthe notifications in question ceased to exist although the notification underSection 48 of the Act had not been issued. The contesting defendantswere restrained from dispossessing the plaintiffs and other co-ownersland 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 of2001. The original plaintiff no.1 was arrayed as Respondent No.38whereas LRs of plaintiff no.2 and defendant no.8 were arrayed asRespondent no.39 (2 – 10), and other defendants 9-39 were arrayed asRespondent nos. 7-37 in the appeal. The appeal was admitted for hearing.The original plaintiff/respondent nos. 38 & 39 were represented bycounsel. That some of the respondents (original defendants) out ofrespondent nos. 7 to 37 (out of original defendant nos. 9 to 39) were notserved as some of them had died. By order dated 09.07.2007 the DivisionBench of the High Court dismissed the entire appeal as having abatedby observing as under:

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A“Many respondents have died during the pendency of theappeal but no steps have been taken by the appellant to bring theirLegal Representatives on record.

This appeal accordingly stands abated.”

2.5 That the appellant – DDA filed Review Petition No.314 ofB2008 seeking review of the order dated 09.07.2007 dismissing the appealas having abated. The High Court issued notice on 03.09.2008 whichremained unserved till the decision in the impugned order dated13.01.2012. In the meantime, the original plaintiff no.1 Shri Diwan ChandAnand was reported to have expired on 16.11.2010 and after ascertainingCabout his legal representatives, application for substitution, being CMNo.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 dismissedthe review application and has refused to recall the order dated 09.07.2007dismissing the appeal as having abated. The original order passed by theHigh Court dated 09.07.2007 dismissing the main appeal as having abatedDand the subsequent order dated 13.01.2012 dismissing the reviewapplication and refusing to recall the order dated 09.07.2007 are thesubject matter of the present appeals.

3. Shri Sanjay Poddar, learned Senior Advocate has appeared onbehalf of the appellant – DDA and Shri Shyam Divan, learned SeniorEAdvocate has appeared on behalf of the contesting respondent nos.33and Shri Sunil Gupta, learned Senior Advocate has appeared on behalfof respondent nos. 3 to 40.

4. Shri Poddar, learned Senior Advocate appearing on behalf ofthe appellant – DDA has vehemently submitted that the High Court hasFdismissed the appeal as abated solely on the ground of failure on the partof the appellant to bring on record the legal representatives of certainrespondents without going into the question as to whether the presenceof such persons was necessary and also without deciding the applicationbeing CM No.22449 of 2011 (for substitution of legal representatives ofGoriginal plaintiff - Shri Diwan Chand Anand).

4.1 It is submitted that as a matter of fact the appeal has not beendismissed on the ground of non-substitution of plaintiffs, who arenecessary parties. It is contended that the appeal as a whole cannot betreated as abated on failure to substitute the legal representative of suchdefendants who even did not file written statement and even remainedH

ex-parte, in view of the provisions of Order 22 Rule 4(4) of the Code ofCivil Procedure (for short ‘CPC’).

4.2 It is further urged that the High Court has dismissed the appealon hyper technical ground without examining the core issue, as to, whether,the Appeal can be heard in the absence of such respondents/defendantsor not.

4.3 It is also submitted that even during the course of the hearingof the SLPs, the contesting respondents have argued that said twoplaintiffs filed the suit on behalf of other co-owners/defendants and theywere prosecuting the suit on their behalf though these defendants remainedex-parte and thus the learned Trial Court rightly passed the decree intheir favour. Reliance was placed on behalf of the appellants upon thedecision of this Court in the case of A. Viswanatha Pilliai and othersvs. The Special Tehsildar for Land Acquisition No.4 and others,(1991) 4 SCC 17 in support of the submission that one co-owner canprefer and prosecute the legal remedies for and on behalf of other co-owners. It is submitted that applying the same analogy, the same co-owner 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, thenthey are deemed to have represented the same in the appeal. It issubmitted that the respondents/defendants who died did not file writtenstatement and remained ex-parte and therefore they were not necessaryparties for adjudication of the appeal. Reliance is placed upon the decisionof this Court in the case of Mata Prasad Mathur vs. Jawala PrasadMathur, (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 whetherthe appeal abets as a whole has to depend upon facts of each case andno straight formula is applicable since each case has its own peculiarities.It is submitted that the Hon’ble High Court has failed to examine thisimportant and vital aspect which was required to be considered asobserved and held by the Constitution Bench Judgment of this Hon’bleCourt 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 Judgmentthis Hon’ble Court has further held that the provisions of Order 22 Rule4 CPC are required to be applied liberally with the object of protecting A

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Athe rights of the parties and not to destroy the same. It is contended thatwhen the land is sought to be acquired and meant for a public purpose asin the instant case interest of justice warrants that the appeal be heardon 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/Bappeals on the alleged ground of non-impleadment of the LRs of JagdishAnand in the present SLPs/appeals who was one of the legal heirs oforiginal plaintiff no.2 and defendant no.8, it is submitted that JagdishAnand was one of the legal representatives of original plaintiff no.2 anddefendant no.8, out of the 10. That the other legal representatives arealready on record and therefore as the estate is represented by the otherClegal representatives the present appeals can proceed in the presence ofthe other legal representatives who are already on record as all of themrepresent the estate of their father and mother.

Procedure

4.7 So far as the submission on behalf of the contesting respondentsthat on the issue of finality of judgment/decree on account of non-Dsubstitution of legal representatives and/or there may be conflicting orinconsistent decrees is concerned, it is submitted that as such the judgmentand decree passed by the learned Trial Court is a nullity being withoutjurisdiction as this Hon’ble Court in the case of State of Bihar vs.Dharender Kumar, (1995) 4 SCC 229 has held that the Civil CourtEhas no jurisdiction to entertain a civil suit in respect of the Land AcquisitionProceedings/Notifications and cannot pass an injunction order to restrainthe government from taking possession. It is submitted that the decreebeing a nullity the validity of such a decree can be questioned wheneverand wherever it is sought to be relied upon, even at the stage of executionand even at the collateral stage of proceedings. It is submitted that theFdefect of jurisdiction as to the subject matter of the suit land, strikes atthe root of the matter and such a defect cannot be cured even by consentof the parties.

4.8 Now in so far as the submission on behalf of the contestingrespondents, that there is a huge delay in challenging the original orderGdated 09.07.2007 passed in the First Appeal, it is submitted that theappellant was prosecuting the Review Application which was filed inthe year 2008 which remained pending till 13.01.2012. That the delay inpreferring the review was condoned by the High Court. Therefore, theappellant is entitled to seek exclusion of the period during the pendencyHof the review petition and the same has been challenged in the present proceeding. It is submitted that the submission of the respondents in thisregard is liable to be rejected. This is because as observed and held bythis Court in the case of Esha Bhattacharjee vs. ManagingCommittee of Ragunathpur Nafar Academy and others, (2013)12 SCC 649 as well as in the recent decision in the case of RadhaGajapathi Raju & Ors. vs. P. Maduri Gajapathi Raju & Ors. InCivil Appeal No.6974-6975/2021 arising out of SLP (C) No.3373-3374 of 2020 decided on 22.11.2021 pendency of the proceedings inanother Court can be said to be a sufficient ground for condonation ofdelay.

Making above submissions and relying upon the above decisions,it is prayed to allow the present appeals, set aside the orders passed bythe High Court dismissing the appeal as a whole as having abated due tonon-bringing the legal representatives of some of the respondents –original defendants on record and to direct to decide the main appeal onmerits.

5. While opposing the present appeals, learned Senior Advocatesappearing on behalf of the contesting respondents, have, firstly, submittedthat as such there is a huge delay of 1811 days in filing Civil AppealNo.2398 of 2022 against the main order dated 09.07.2007 with no plausiblejustification and explanation. As a matter of fact, even the review petitionbefore the High Court was barred by limitation by 378 days.

5.1 It is further submitted by Learned Senior Advocates on behalfof the Contesting Respondents that in order to appreciate the controversybefore the learned Trial Court, few facts are required to be consideredwhich are as under:

“1. Plaintiffs 1 & 2, Diwan Chand Anand and Smt. Chanan KantaAnand, along with Sh. Dharam Chand Anand, Sh. Gian Chandetc. were migrants from Lahore, Pakistan. The said plaintiffs alongwith Sh. Dharam Chand Anand & others, in and around 1947-48,purchased the disputed land, situated in Village Kharera, TehsilMehrauli, bearing Khasra no.393, 394 & 395, admeasuring 30bighas 6 biswas of land, along with super structure, from one Sh.Mohd Ishaq. Sh. Dharam Chand Anand re-started his business ofbody building on Trucks by constructing a factory on the saidparcels of land in the name of Anand Automobiles and suppliedbus bodies to the Military.

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A2. Since Mohd Ishaq migrated to Pakistan, the properties wereclaimed by Custodian of Evacuee Properties. Representation wasmade by the Plaintiffs & others to de-notify the same as EvacueeProperty. The same was duly considered and on 5[th] December1953, the Custodian of Evacuee Properties confirmed the sale ofthe said land with the super-structure, in favour of Plaintiffs &Bother co-sharers. Sale Certificate was filed with the plaint. Thesaid land is situated within “Lal Dora”.

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3. Subsequently, two Deeds of Conveyance with respect to 30bighas 6 biswas of land, were executed by the President of India,in the year 1962, in favour of the said Plaintiffs along with Sh.CDharam Chand Anand, Sh. Gian Chand & other co-sharers. Thedeeds neither specified the shares of he said six persons in theparcels of land nor allocated or demarcated any portions of theland between them.

4. In the year 1964, Notification under Section 4 of the LandDAcquisition Act, 1894 was issued in respect to number of parcelsof land including the aforesaid land.

5. On 1[st] May, 1964, the co-sharers filed objections against thenotification and nothing was heard for almost 5 years. On 19[th]September, 1966, one of the co-sharer of the said property, madeErepresentation 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 21[st] March, 1964

F7. Release Policy: On 7[th] January, 1967, Central Govt. made apolicy decision that lands which were isolated and situated amidstbuilt up areas and not required for public purposes were to bereleased from acquisition. On 10[th] January, 1967, the Central Govt.wrote to one of the co-owners, viz Shiv Raj Bahadur that DelhiAdministration has been directed to de-notify the land in dispute.

G8. Thereafter, on 6[th] February, 1967, the Lt. Governor of Delhiwrote to Central Govt. confirming necessary draft to de-notifythe land to ensure directions.

9. Again on 10[th] October 1967, one of the co-sharer made anotherrepresentation requesting for release of land.H

10. On 9[th] February 1968, the GoI wrote to Delhi Administrationthat decision in letter dated 23.12.1966 stands and directed to de-notify the parcels of land, which are subject matter of the SLPs.

11. However, on 16[th] January, 1969, Notification under Section 6of the Land Acquisition Act was issued with respect to the landaforesaid.

12. Two out of the six persons, in whose favour the Deeds ofConveyance were executed, viz Dewan Chand Anand & ChananKanta Anand w/o Dharam Chand Anand, filed a suit in the HighCourt of Delhi, in the year 1974, seeking declaration that theNotification dated 21.03.1964 issued under Section 4 of the LandAcquisition Act stands withdrawn and or cancelled/waived andthat the Section 6 Notification is mala-fide, null and void, inoperativein 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 CentralGovernment, upon being approached by some of the owners ofthe land, who were impleaded as defendants, had by acommunication to the then Delhi Administration stated that thesubject land was not required for the stated purpose and thus theNotification under Section 6 was bad and without application ofmind.

13. The suit was instituted by 2 plaintiffs i.e. 2 of the co-owenrs.However, out of the remaining 4 persons, in whose favourconveyance deeds were executed, 3 had already died andaccordingly in the said suit, Dharam Chand Anand, the co-ownerand the legal heirs of the remaining 3 co-owners had to be andwere also impleaded as defendants, as being proper parties, besidesthe Land Acquisition Authorities and DDA.”

5.2 It is submitted that the other owners of the land impleaded asdefendants, did not contest the suit, as the suit was in mutual interest. Apreliminary issue, namely, whether a civil suit impugning the notificationsunder Sections 4 & 6 of the Act is maintainable was decided against theplaintiffs. However, ultimately, the suit was decreed vide judgment anddecree dated 12.01.2000 by which a decree of declaration was passedholding that the notifications under Sections 4 & 6 of the Act had ceasedto exist even before filing of the suit and the suit lands stood releasedfrom the ambit and scope of the notifications. The learned Trial Courtalso passed a decree of permanent injunction restraining the official AB

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Adefendants from dispossessing the plaintiffs and other co-sharers fromthe suit property. It is submitted that thereafter in an appeal preferred byDDA alone, a number of opportunities were given to bring the legalrepresentatives (LRs) of some of the respondents on record. But theDDA failed to bring on record the LRs of many of the respondents whodied. It is submitted that, at one point of time, the suit was dismissed forBnon-prosecution which was later restored. Several of the five respondentsi.e. the original purchasers of the lands and their heirs died. Even theplaintiff – original plaintiff no.1 – respondent died on 16.11.2010. Thoughopportunities were given for substitution of LRs. They were notsubstituted. It is submitted that in these circumstances, the High CourtCvide final order dated 09.07.2007 dismissed the appeal as abated. It issubmitted that owing to the original plaintiff no.1 – respondent dying andalso a number of other private respondents dying, the High Court in thesaid order, appears to have not given their details. It is submitted thathowever, it is not in dispute that a large number of private respondentsdid die during the pendency of the appeal and the LRs were not broughtDon 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 thenon-substitution of legal representatives of some of the respondents -owners of the land and/or whether on demise of the some of therespondents during the pendency of the first appeal and the appellantEtherein not bringing the LRs on record despite repeated opportunities,whether the entire appeal stood abated or only in so far as the particulardeceased respondents, it is vehemently submitted by the learned SeniorAdvocate for the contesting respondents that there would be conflictingdecrees qua the respondents who are already served and whose LRsFare brought on record and qua the deceased respondents whose legalrepresentatives are not brought on record. It is submitted by the learnedSenior Advocate that decree dated 12.01.2000 will be in favour of thelegal representatives of all the deceased respondents and if the appealsucceeds in High Court, there will be conflicting decrees since the property is jointly owned and the decree is inseparable or inseverable asGthe property remains undivided with each party having right, title andinterest in the entire property.

5.4 It is submitted that factually there were two deeds ofconveyance in respect of the entire land in favour of six owners, withoutdemarcating their respective shares. Thus, in law each of the six ownersH

or their heirs were the owners of the entire land having right, title andinterest in every part and parcel of land along with others and it cannotbe said that the said owners were exclusive owners of any portion of thesuit lands. It is submitted that in the case of K.Vishwanathan Pillaiversus Special Tehsildar for Land Acquisition No.IV, (1991) 4SCC 17, it has been held that one of the co-owners can file a suit andrecover the property against the stranger and the decree would enure tothe benefit of all the co-owners. It is submitted that no co-owner hasright, title and interest in any of the item or portion of the property buthas 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 Courtvide judgment and decree had decreed that firstly, the notifications hadceased to exist even before filing of the suit and therefore, the suit landstood released from the scope of the said notifications. Secondly, thepermanent injunction was granted in favour of the plaintiffs and privaterespondents (co-sharers) and against the land acquisition authorities aswell as the DDA, where the DDA was restrained from dispossessingthem. It is submitted that considering the aforesaid facts of the case, inthe absence of legal representatives of the deceased respondents, thedecree in respect of the suit property would become final vis-à-vis thesaid persons. But in the present proceedings in respect of the self-samesuit property are allowed to continue as against the other respondents,the enforcement of the decree consequent to the possible success of theproceedings would lead to conflict of decrees not permissible in law.The relief of permanent injunction in favour of the deceased respondentswould continue to be in force, whereas it would not be in force as againstthe respondents. This also will result in passing of two conflicting decreeswhich shall be incapable of enforcement.

5.6 It is submitted that the present is the case of “joint and indivisibledecree”/” joint and inseverable or inseparable decree”. Hence whenthere is omission or lapse or failure to bring on record the LRs of one ormore deceased respondents on time, it would be fatal and would requirethe appeal to be dismissed in toto and it would result in abatement ofentire proceedings. Otherwise, inconsistent or contradictory decreeswould result with respect to same subject matter vis-à-vis the others.

Making the above submissions it is vehemently submitted that theHigh Court has rightly dismissed the entire appeal as having abated andthe same is not required to be interfered with by this Court.

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A6. Making above submissions and relying upon the decisions ofthis Court in the case of State of Punjab vs. Nathu Ram, AIR 1962SC 89; Hemareddi vs. Ramachandra, (2019) 6 SCC 756; SunkaraLakehminarassama vs. Sagi, (2019) 11 SCC 787 and the recentdecision of this Court Venigalla Koteswaramman vs. MalempatiSuryamba, (2021) 4 SCC 246, it is prayed to dismiss the present appeals.B7. We have heard learned counsel for the respective parties atlength.

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8. At the outset, it is required to be noted that by order dated09.07.2007, the High Court dismissed the First Appeal preferred by theCappellant herein as having abated on the ground that with respect tosome of the original defendants – respondents in appeal who died, theirlegal representatives were not brought on record. Thus, on non-bringingthe legal representatives of some of the respondents who died duringthe pendency of the appeal on record, the High Court dismissed theappeal as a whole as having abated. The said order dated 09.07.2007Dreads as under:

“R.F.A. No.280/2001

Many respondents have died during the pendency of the appealbut no steps have been taken by the appellant to bring their LegalErepresentatives on record. This appeal accordingly stands abated.”

8.1 Thereafter the appellant preferred the review application inthe year 2008 which has been dismissed by the High Court by the impugnedorder dated 13.01.2012. At this stage, it is required to be noted that therewas a delay in preferring the Review Application which came to beFcondoned by the High Court. That subsequently the appellant herein –DDA – original appellant, preferred the present two appeals, one,challenging the original order dated 09.07.2007 dismissing the appeal asa whole as having abated and the second, challenging the order dismissingthe review application. It is sought to be contended on or behalf of thecontesting respondents that there is a huge delay in preferring the appealGchallenging the order dated 09.07.2007 and therefore present Appealmay not be entertained. However, the appellant was bona fide prosecutingthe review application. That after dismissal of the review application inwhich the appellant prayed to review and recall the order dated09.07.2007, that the appellant has preferred two separate appeals, one,challenging the dismissal of the review application and another, challengingH

the original order dated 09.07.2007. Therefore, once the appellant wasbona fide prosecuting the review application, it was justified in waitingfor the outcome of the Review Application. If, without waiting for theoutcome of the review application, the appellant would have preferredthe appeal at that stage, the appellant would have been non-suited on theground of the pendency of the review application and the appellant wouldhave been told to wait till the outcome of the review application.Therefore, in the facts and circumstances of the case the time taken inprosecuting the review application is to be excluded and the appealpreferred challenging the order dated 09.07.2007 is to be considered onmerits. Therefore, the objection on behalf of the contesting respondentsnot to consider the substantive appeal challenging the order dated09.07.2007 on merits is hereby overruled and we may proceed to considerthe order dated 09.07.2007 dismissing the appeal as a whole as havingabated on merits.

8.2 Before we consider the order dated 09.07.2007 on merits therelevant pleadings and the necessary averments in the plaint which wouldhave a direct bearing on the controversy in the present appeal are requiredto be referred to. It is required to be noted and it is not in dispute that thesuit was filed by only two co-owners and rest of the co-owners/co-sharers were joined as defendants as proper parties. According to theoriginal plaintiffs, the land in question was owned jointly by the originalplaintiffs and the other co-sharers which can be culled out from thefollowing averments in the plaint:

“4. That by order dated 5th December, 1953, the Custodian ofEvacuee Properties confirmed the sale regarding the said land infavour of the Plaintiffs and the other co-sharers on condition thatthey will pay the amount of Rs. 65,399.00 to the Custodian ofEvacuee Properties. That amount of Rs. 65,339.00 was paid tothe Custodian by the Plaintiffs and other Co-sharers.

5. That on the 26th April, 1962, the Custodian of EvacueeProperties issued Sale Certificates regarding the said land in favourof the Plaintiff and the other co-sharers. A copy of the SaleCertificate is attached herewith as Annexure “B”.

7. That after the purchase, the Plaintiffs and the othercosharers began to reside on land bearing Khasra No. 395 andsome of the co-sharers made a number of improvements andconstructions from 1947-48 to 1963 in the land comprised in the A

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Asaid Khasra and some co-sharers also set up an AutomobileFactory for the manufacture of automobiles and ancillary partsand body building for mechanically propelled vehicles, in the saidland.

11. That on 1st May, 1964, the co-sharers of this propertyBfiled objections against the said Notification and thereafter foralmost 5 years, no hearing was fixed for the said objections andno 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 co-sharers of this property, made a representationCagainst the proposed acquisition to the Government of India,through the Hon’ble Minister Shri Mehar Chand Khanna of theMinistry of Works & Housing. A copy of the representation made,is attached herewith as Annexure “C”.

44. That the Plaintiffs and the other co-sharers have allDalong been harassed for reasons unknown, for acquiring the saidproperty by the Local Administration in spite of two specificdirections and decisions of the Central Government to denotifythe said property.

(45) That the legal representatives of the co-sharers whoEhad died, were entitled to be heard and although it was brought tothe notice of the Land Acquisition Collector that there were legalrepresentatives of the deceased owners, but they were not givenany 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 co-sharers in the landFin dispute and have been impleaded as proper parties to the suit”

8.3 That the plaintiffs being co-owners/co-sharers of the entiresuit land in question prayed for the following reliefs:

“(a) It is declared that the-entire proceedings adopted underGSection SA of the Land Acquisition Act are malafide, illegal andincomplete violation of the letter and spirit of. the Land AcquisitionAct and is contrary to the principles of natural justice, fair-play,equity and good conscience.

(b) It is declared that the Notification no. F.19(93-A)/63-HL&H(ii) dated 21st March, 1964 issued under, Section 4 of the

Land Acquisition Act stands withdrawn and/ or cancelled andwaived by your own conduct.

(c) It be declared that the Notification No. F.19(93-A)/63-L&H dated 16th January, 1969 issued under Section 6 of the LandAcquisition Act is malafide, illegal, null and void, ultra vires,inoperative in Law and without jurisdiction and/ or in excess ofjurisdiction.

(d) A permanent injunction be issued against the Defendantsnot to dispossess the Plaintiffs and the other co-sharers from theproperty and land bearing Khasra no. 395, 394 and 708/393 ofVillage Kharera.

(e) An ad interim ex-parte injunction in terms of theproceedings prayer.

(f) The costs of the suit be allowed to the Plaintiff againstthe Defendants.

(g) The Defendants be ordered to pay to the Plaintiffs thecost of incidentals.

(h) The Court may pass such other and further orders asmay be just, proper and necessary under the circumstances ofthe case.”

8.4 Thus, from the aforesaid it can be seen that the original plaintiffs– two co-owners/co-sharers of the entire land in question fought withrespect to the entire land belonging to the plaintiffs and the co-ownersjointly. It can be said that the original plaintiffs instituted the suit forthemselves as well as for and/or on behalf of the other co-owners – co-sharers with respect to the entire land jointly owned by all of them.Thus, it can safely be held that the entire estate was represented throughoriginal plaintiffs in which even the co-sharers/co-owners were also joinedas defendants as proper parties. Therefore, even when the learned TrialCourt passed the judgment and decree, it passed the judgment and decreewith respect to the entire land and even granted the permanent injunctionto protect the ownership and protection of the plaintiffs as well as theother co-sharers over the suit land. In light of the above factual scenariothe order passed by the High Court dated 09.07.2007 in dismissing thefirst appeal as a whole as having been abated on not taking step to bringon record the legal representatives of some of the original defendants/

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Arespondents in the appeal is required to be tested and/or considered inlight of the settled legal principles.

9. While considering the impugned order passed by the High Courtdated 09.07.2007, dismissing the appeal as having abated, the law onabatement and on Order 22 CPC is required to be discussed. Order 22BCPC fell for consideration before this Court in the recent decision in thecase of Venigalla Koteswaramman (supra) inwhich this Courtconsidered in detail the earlier decisions of this Court in the case ofNathu Ram (supra) as well as the other decisions including the laterdecision in the case of Hemareddi (supra). The relevant discussion onOrder 22 CPC in paragraphs 42 to 44.8 are extracted as under:C

“42. The rules of procedure for dealing with death,marriage, and insolvency of parties in a civil litigation are essentiallygoverned by the provisions contained in Order 22 of the Code.

42.1. Though the provisions in Rule 1 to Rule 10-A of Order22 primarily refer to the proceedings in a suit but, by virtue ofRule 11, the said provisions apply to the appeals too and, for thepurpose of an appeal, the expressions “plaintiff”, “defendant” and“suit” could be read as “appellant”, “respondent” and “appeal”respectively.

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42.2. Rule 1 of Order 22 of the Code declares that thedeath of a plaintiff or defendant shall not cause the suit to abate ifthe right to sue survives. When read for the purpose of appeal,this provision means that the death of an appellant or respondentshall not cause the appeal to abate if the right to sue survives.

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F42.3. Rule 2 of Order 22 of the Code ordains the procedurewhere one of the several plaintiffs or defendants dies and right tosue survives to the surviving plaintiff(s) alone, or against thesurviving defendant(s) alone. The same procedure applies in appealwhere one of the several appellants or respondents dies and rightto sue survives to the surviving appellant(s) alone, or against theGsurviving respondent(s) alone. The procedure is that the Court isrequired to cause an entry to that effect to be made on record andthe 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 ofHOrder 22 of the Code, in case of death of one of the several

respondents, where right to sue does not survive against thesurviving respondent or respondents as also in the case where thesole respondent dies and the right to sue survives, the contemplatedprocedure is that the legal representatives of the deceasedrespondent are to be substituted in his place; and if no applicationis made for such substitution within the time limited by law, theappeal abates as against the deceased respondent.

42.5. Of course, the provisions have been made for dealingwith the application for substitution filed belatedly but the sameneed not be elaborated in the present case because it remains anadmitted fact that no application for substitution of legalrepresentatives of Defendant 2 (who was Respondent 3 in ASNo. 1887 of 1988) was made before the High Court.

42.6. The relevant provisions contained in Rules 1, 2, sub-rules (1), (2) and (3) of Rule 4 and Rule 11 of Order 22 could beusefully reproduced as under “1. No abatement by party’s death, if right to suesurvives.—The death of a plaintiff or defendant shall not causethe suit to abate if the right to sue survives.

2. Procedure where one of several plaintiffs ordefendants dies and right to sue survives.—Where there aremore plaintiffs or defendants than one, and any of them dies, andwhere the right to sue survives to the surviving plaintiff or plaintiffsalone, or against the surviving defendant or defendants alone, theCourt shall cause an entry to that effect to be made on the record,and the suit shall proceed at the instance of the surviving plaintiffor plaintiffs, or against the surviving defendant or defendants.

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4. Procedure in case of death of one of severaldefendants or of sole defendant.—(1) Where one of two ormore defendants dies and the right to sue does not survive againstthe surviving defendant or defendants alone, or a sole defendantor sole surviving defendant dies and the right to sue survives, theCourt, on an application made in that behalf, shall cause the legalrepresentative of the deceased defendant to be made a party andshall proceed with the suit.

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(2) Any person so made a party may make any defenceappropriate to his character as legal representative of the deceaseddefendant.

(3) Where within the time limited by law no application ismade under sub-rule (1), the suit shall abate as against the deceaseddefendant.

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11. Application of Order to appeals.—In the applicationof this Order to appeals, so far as may be, the word “plaintiff”shall be held to include an appellant, the word “defendant” arespondent, and the word “suit” an appeal.”

43. For determining if Order 22 Rule 2 could apply, wehave to examine if right to sue survived against the survivingrespondents. It is not the case that no legal heirs were availablefor Defendant 2. It is also not the case where the estate of thedeceased Defendant 2 passed on to the remaining parties bysurvivorship or otherwise. Therefore, applicability of Order 22Rule 2 CPC is clearly ruled out.

44. Admittedly, steps were not taken for substitution of thelegal representatives of Defendant 2, who was Respondent 3 inAS No. 1887 of 1988. Therefore, sub-rule (3) of Rule 4 of Order22 of the Code directly came into operation and the said appealfiled by Defendants 16 to 18 abated against Defendant 2(Respondent 3 therein). We may profitably recapitulate at thisjuncture that in fact, the other appeal filed by Defendants 4, 13and 14 (AS No. 1433 of 1989) was specifically dismissed by theHigh Court as against the deceased Defendant 2 on 25-4-2006.

44.1. Once it is found that the appeal filed by Defendants16 to 18 abated as against Defendant 2 (Respondent 3), the questionarises as to whether that appeal could have proceeded againstthe 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 theeffect of abatement of appeal against one respondent in case ofmultiple respondents, as enunciated and explained by this Court.

44.2. The relevant principles were stated and explained indepth by this Court in State of Punjab v. Nathu Ram [State of

Punjab v. Nathu Ram, AIR 1962 SC 89]. In that case, the PunjabGovernment had acquired certain pieces of land belonging to twobrothers jointly. Upon their refusal to accept the compensationoffered, their joint claim was referred to arbitration and an awardwas passed in their favour that was challenged by the StateGovernment in appeal before the High Court. During pendencyof appeal, one of the brothers died but no application was filedwithin time to bring on record his legal representatives. The HighCourt dismissed [Province of East Punjab v. Labhu Ram, 1954SCC OnLine P&H 132] the appeal while observing that it hadabated against the deceased brother and consequently, abatedagainst the surviving brother too. The order so passed by the HighCourt was questioned before this Court in appeal by certificate offitness.

44.3. While dismissing the appeal and affirming the viewsof the High Court, this Court in Nathu Ram case [State ofPunjab v. Nathu Ram, AIR 1962 SC 89] enunciated the principlesconcerning the effect of abatement and explained as to why, incase of joint and indivisible decree, the appeal against the survivingrespondent(s) cannot be proceeded with and has to be dismissedas a result of its abatement against the deceased respondent; thebasic reason being that in the absence of the legal representativesof deceased respondent, the appellate court cannot determinebetween the appellant and the legal representatives anything whichmay affect the rights of the legal representatives. This Courtpointed out that by abatement of appeal qua the deceasedrespondent, the decree between the appellant and the deceasedrespondent becomes final and the appellate court cannot, in anyway 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 1962SC 89] , AIR pp. 90-91, paras 4-6 & 8)

“4. It is not disputed that in view of Order 22 Rule 4, CivilProcedure Code, hereinafter called the Code, the appeal abatedagainst Labhu Ram, deceased, when no application for bringingon record his legal representatives had been made within the timelimited by law. The Code does not provide for the abatement ofthe appeal against the other respondents. Courts have held that in AB

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certain circumstances, the appeals against the co-respondentswould also abate as a result of the abatement of the appeal againstthe deceased respondent. They have not been always agreed withrespect to the result of the particular circumstances of a case andthere has been, consequently, divergence of opinion in theapplication of the principle. It will serve no useful purpose toconsider the cases. Suffice it to say that when Order 22 Rule 4does not provide for the abatement of the appeals against the co-respondents of the deceased respondent there can be no questionof abatement of the appeals against them. To say that the appealsagainst them abated in certain circumstances, is not a correctstatement. Of course, the appeals against them cannot proceed incertain circumstances and have therefore to be dismissed. Sucha result depends on the nature of the relief sought in the appeal.

5. The same conclusion is to be drawn from the provisionsof Order 1 Rule 9 of the Code which provides that no suit shall bedefeated by reason of the misjoinder or non-joinder of parties andthe court may, in every suit, deal with the matter in controversy sofar as regards the rights and interests of the parties actually beforeit. It follows, therefore, that if the court can deal with the matterin controversy so far as regards the rights and interests of theappellant and the respondents other than the deceased respondent,it has to proceed with the appeal and decide it. It is only when itis not possible for the court to deal with such matters, that itwill have to refuse to proceed further with the appeal andtherefore dismiss it.

6. The question whether a court can deal with such mattersor not, will depend on the facts of each case and therefore noexhaustive statement can be made about the circumstances whenthis is possible or is not possible. It may, however, be stated thatordinarily the considerations which weigh with the court indeciding upon this question are whether the appeal betweenthe appellants and the respondents other than the deceasedcan be said to be properly constituted or can be said to haveall the necessary parties for the decision of the controversybefore the court. The test to determine this has been describedin diverse forms. Courts will not proceed with an appeal (a)when the success of the appeal may lead to the court’s comingto a decision which be in conflict with the decision between the appellant and the deceased respondent and thereforewhich would lead to the court’s passing a decree which willbe contradictory to the decree which had become final withrespect to the same subject-matter between the appellant andthe deceased respondent; (b) when the appellant could nothave brought the action for the necessary relief against thoserespondents alone who are still before the court; and (c) whenthe decree against the surviving respondents, if the appealsucceeds, be ineffective, that is to say, it could not besuccessfully executed.

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8. The difficulty arises always when there is a joint decree.Here again, the consensus of opinion is that if the decree is jointand indivisible, the appeal against the other respondents also willnot be proceeded with and will have to be dismissed as a result ofthe abatement of the appeal against the deceased respondent.Different views exist in the case of joint decrees in favour ofrespondents whose rights in the subject-matter of the decree arespecified. One view is that in such cases, the abatement of theappeal against the deceased respondent will have the result ofmaking the decree affecting his specific interest to be final andthat the decree against the other respondents can be suitably dealtwith by the appellate court. We do not consider this view correct.The specification of shares or of interest of the deceasedrespondent does not affect the nature of the decree and thecapacity of the joint decree-holder to execute the entire decree orto resist the attempt of the other party to interfere with the jointright decreed in his favour. The abatement of an appeal meansnot only that the decree between the appellant and thedeceased respondent has become final, but also, as anecessary corollary, that the appellate court cannot, in anyway, modify that decree directly or indirectly. The reason isplain. It is that in the absence of the legal representatives ofthe deceased respondent, the appellate court cannot determineanything between the appellant and the legal representativeswhich may affect the rights of the legal representatives underthe decree. It is immaterial that the modification which the Courtwill do is one to which exception can or cannot be taken.”

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A9.1 After referring to the decision of this Court in the case ofNathu Ram (supra), in the case of Vennigalla Koteswaramma vs.Malampati Suryamba and Others, (2003) 3 SCC 272, it is observedby this Court that the nature and extent of the abatement in a given caseand the decision to be taken thereon will depend upon the facts of eachcase and, therefore, no exhaustive statement can be made either wayBand that the decision will ultimately depend upon the fact whether thedecree obtained was a joint decree or a separate one. It is furtherobserved that this question cannot and should not also be tested merelyon the format of the decree under challenge or it being one or the mannerin which it was dealt with before or by the Court which passed it.CThus, as observed and held by the Court:

(i) The death of a plaintiff or defendant shall not cause the suitto abate if the right to sue survives;

(ii) If there are more plaintiffs or defendants than one, and anyDof them dies, and where the right to sue survives to thesurviving plaintiff or plaintiffs alone, or against the survivingdefendant or defendants alone, the Court shall cause anentry to that effect to be made on the record, and the suitshall proceed at the instance of the surviving plaintiff orplaintiffs, or against the surviving defendant or defendantsE(Order 22 Rule 2);

(iii) where one of two or more defendants dies and the right tosue does not survive against the surviving defendant ordefendants alone, or a sole defendant or sole survivingdefendant dies and the right to sue survives, the Court, onFan application made in that behalf, shall cause the legalrepresentative of the deceased defendant to be made a partyand shall proceed with the suit. Where within the time limitedby law no application is made under sub-rule 1 of Order 22Rule 4, the suit shall abate as against the deceasedGdefendant;

(iv) the provision of Order 22 shall also apply to the appealproceedings also.

9.2 As observed and held by this Court in the aforesaid decisionswhile considering whether the suit/appeal has abated due to non-bringingH

the legal representatives of plaintiffs/defendants or not, the Court has toexamine if the right to sue survives against the surviving respondents.Thereafter the Appellate Court has to consider the question whethernon-bringing the legal representatives of some of the defendants, theappeal could have proceeded against the surviving respondents.Therefore, the Appellate Court has to consider the effect of abatementof the appeal against each of the respondents in case of multiplerespondents.

9.3 Applying the law laid down by this Court in the aforesaiddecisions to the impugned judgment and order dated 09.07.2007 passedby the High Court, it appears that the High Court has mechanically andwithout holding any further enquiry which was required to be conductedas observed hereinabove, has simply dismissed the entire appeal as havingabated due to non-bringing on record the legal representatives of someof the respondents – the original defendants who, as such, neithercontested the suit nor filed the written statements. At the cost of repetition,it is observed that as such the original plaintiffs instituted the suit beingco-owners/co-sharers and for and on behalf of all the co-owners/co-sharers of the entire land sought to be acquired under the Land AcquisitionAct.

9.4 As observed and held by this Court in the case ofK.Vishwanathan Pillai (supra), the co-owner is as much an owner ofthe entire property as a sole owner of the property. No co-owner has adefinite 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 parcelof the joint property. He owns several parts of the composite propertyalong with others and it cannot be said that he is only a part owner or afractional owner in the property. It is observed that, therefore, one co-owner can file a suit and recover the property against strangers and thedecree would enure to all the co-owners. The aforesaid principle of lawwould be applicable in the appeal also. Thus, in the instant case, whenthe original plaintiffs – two co-owners instituted the suit with respect tothe entire suit land jointly owned by the plaintiffs as well as defendantsnos. 9 to 39 and when some of the defendants/respondents in appealdied, it can be said that estate is represented by others – more particularlythe plaintiffs/heirs of the plaintiffs and it cannot be said that on not bringingthe legal representatives of the some of the co-sharers – defendants –respondents in appeal the appeal would abate as a whole.

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A9.5 While passing the impugned order dated 09.07.2007, the HighCourt has neither considered the relevant provisions of CPC namelyOrder 22 Rule 1 to 11 nor held any enquiry which was required to beconducted as observed hereinabove.

9.6 One another important aspect which is also required to beBnoted is that the suit was filed challenging the acquisition proceedingsunder the Land Acquisition Act, that too, with respect to the land inquestion. It was the specific case on behalf of the appellant and eventhe issue was framed by the learned Trial Court on the jurisdiction of theCivil Court to entertain the suit challenging the acquisition proceedingsunder the Land Acquisition Act. From the findings recorded by the learnedCTrial Court, it appears that though the learned Trial Court held the issueof jurisdiction in favour of the appellant herein, still thereafter it grantedthe relief and decreed the suit which was the subject matter before theHigh Court. Thus, according to the appellant - DDA – the judgment anddecree passed by the learned Trial Court was a nullity and wholly withoutDjurisdiction. If that be so, then, another question which may be requiredto 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 heldthat the decree was a nullity and/or wholly without jurisdiction then thedecree will be nullity for all purposes. The aforesaid aspect is also requiredto be determined.E

9.7 In any case what would have been the consequences of notbringing the legal representatives of some of the respondents/defendantswho died during the pendency of the appeal and whether the right to suesurvives against the original plaintiffs and/or surviving respondents/defendants was to be considered by the High Court, which the HighFCourt failed to consider in the instant case.

10. In view of the above discussion and for the reason statedabove both these appeals succeed. The impugned judgment and orderpassed by the High Court dated 09.07.2007 dismissing the appeal as awhole as having abated for not bringing the legal representatives of someGof the respondents/original defendants who died during the pendency ofthe appeal is hereby set aside. The High Court to consider the Appealnow in accordance with law and on its own merits and in light of theobservations made hereinabove, more particularly, the High Court shallhave to consider and hold an enquiry, whether, on the death of some ofHthe respondents in the appeal (defendants in suit) the right to sue against

the remaining respondents – original plaintiffs/the remaining originaldefendants would survive or not including the fact that the estate isbeing represented by surviving original plaintiffs/heirs of the originalplaintiffs/surviving defendants having a bearing on the enquiry to be held.

With these observations the present Appeals are Allowedaccordingly to the aforesaid extent. However, there shall be no order asto costs.

Nidhi Jain and Amarendra Kumar(Assisted by : Ajay, LCRA)

Appeals allowed.

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