Second Appeal dismissed. Second Appeal dismissed because a suit for declaration of title and possession by joint co-owners abates due to the death of one plaintiff without joining legal representatives, rendering the decree a nullity.
No substantial question of law arising; Second Appeal dismissed. Costs to the respondent.
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MSRJ S.A.No.38 of 2017
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HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO S.A.No.38 of 2017
ORDER:
This Second Appeal is preferred against the judgment and decree dt.29-04-2016 in A.S.No.19 of 2014 of the III Additional District Judge, Bhimavaram reversing the judgment and decree dt.2012-2013 in O.S.No.618 of 2006 of the Principal Junior Civil Judge, Bhimavaram.
MSRJ S.A.No.38 of 2017
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1 2001 (4) ALT 580
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because it would be in conflict between the dismissing pf the suit on account of abatement caused by one of the plaintiffs.
“(1) Wherever the plaintiffs or appellants or petitioners are found to have distinct, separate and independent rights of their own and for purpose of convenience or otherwise, joined together in a single litigation to vindicate their rights the decree passed by the Court thereon is to be viewed in substance as the combination of several decrees in favour of the one or the other parties and not as a joint and inseverable decree. The same would be the position in the case of defendants or respondents having similar rights contesting the claims against them.
(2) Whenever different and distinct claims of more than one are sought to be vindicated in one single proceedings as the one now before us, under the Land Acquisition Act or in similar nature of proceedings and/or claims in assertion of individual rights of parties are clubbed, consolidated and dealt with together by the Courts concerned and a single judgment or decree has been passed, it should be treated as a mere combination of several decrees in favour of or
2 AIR 2003 S.C. 2588 (1)
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against one or more of the parties and not as joint and inseparable decrees.
(3) The mere fact that the claims or rights asserted or sought to be vindicated by more than one are similar or identical in nature or by joining together of more than one of such claimants of a particular nature, by itself would not be sufficient in law to treat them as joint claims, so as to render the judgment or decree passed thereon a joint and inseverable one.
(4) The question as to whether in a given case the decree is joint and inseverable or joint and severable or separable has to be decided, for the purposes of abatement or dismissal of the entire appeal as not being properly and duly constituted or rendered incompetent for being further proceeded with, requires to be determined only with reference to the fact as to whether the judgment/decree passed in the proceedings vis-a-vis the remaining parties would suffer the vice of contradictory or inconsistent decrees. For that reason, a decree can be said to be contradictory or inconsistent with another decree only when the two decrees are incapable of enforcement or would be mutually selfdestructive and that the enforcement of one would negate or render impossible the enforcement of the other.”
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dismissal of the suit as against of the appellants also. Otherwise there would be conflicting judgments.
B.C.Harinarayanamma and others (1 supra) and this Court had rightly taken a view that if the suit against one of the plaintiffs, who is a co-owner, stands dismissed by abatement due to his death, and if the suit is decreed for declaration of title and possession in favour of surviving co-owners/plaintiffs, it leads to conflict of judgments. Therefore, the judgment of the trial Court cannot be sustained.
__________________________________ JUSTICE M.S.RAMACHANDRA RAO
Date: 16-03-2017 kvr
2 issues framed by the court
Whether the Second Appeal against a decree declared in a suit for partition and possession abated due to the death of a co-owner plaintiff without joining her legal representatives is maintainable.
Whether the rule permitting separate decrees for independent rights applies to joint claims based on ancestral succession as co-owners.
Colour shows how this judgement treated each authority
B.C. Harinarayanamma and others Vs. V. Narasimha and othersDistinguished¶6
B.C.Harinarayanamma and others Vs. V.Narasimha and others 2001 (4) ALT 580
S. Amarjit Singh Kalra (dead) by L.Rs. and others Vs. Smt. Pramod Gupta (dead) by L.Rs. and othersDistinguished¶8
S.Amarjit Singh Kalra (dead) by L.Rs. and others Vs. Smt. Pramod Gupta (dead) by L.Rs. and others AIR 2003 S.C. 2588 · Who else cites this
Appellants (Plaintiffs 1-4)
Vemala Chanti
1st Respondent
M.S. Ramachandra Rao
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
