Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2397 of 2022
Delhi Development Authority ...Appellant
Versus
Diwan Chand Anand & Ors. …Respondents
With
CIVIL APPEAL NO.2398 OF 2022
Delhi Development Authority …Appellant
Versus
Diwan Chand Anand & Ors. …Respondents
J U D G M E N T
M. R. Shah, J.
Signature Not Verified
Digitally signed by R
Natarajan
Date: 2022.07.11
17:11:57 IST
Reason:
1
1. Feeling aggrieved and dissatisfied with the impugned
order dated 09.07.2007 passed by the High Court of Delhi in
RFA No.280 of 2001 and the subsequent order dated
13.01.2012 passed by the High Court in R.P. No.314 of 2008
in the very same RFA No.280 of 2001, the original appellant
before the High Court – Delhi Development Authority (‘DDA’
for short) has preferred the present appeals.
2. The facts leading to the present appeals in a nutshell are
as under:
The two plaintiffs, namely, Shri Diwan Chand Anand and
Smt. Chanan Kanta Anand claiming to be the coowners of the
suit property filed the suit before the Civil Court/learned Trial
Court for declaration and permanent injunction. The suit was
filed challenging the acquisition proceedings under the Land
Acquisition Act, 1894 (hereinafter referred to as ‘the Act’). In
the plaint defendant nos. 8 to 39 were impleaded alleging to
be coshares as proper parties to the suit. The original
plaintiff no.2, Smt. Chanan Kanta Anand, was the wife of
original defendant no.8 – Shri Dharam Chand Anand. On the
demise of the husband and wife (original plaintiff no. 2 &
2
defendant no. 8) their children were substituted both as
plaintiff nos. 2(i) to 2(x) and defendant nos. 8(i) to 8(x). The
suit was contested by the original defendant nos. 1 to 5 and 7
including the appellant DDA. They filed the written statement
controverting the claim of the plaintiffs. The suit was resisted
on the ground that the Civil Court had no jurisdiction with
respect to a challenge to the acquisition proceedings under
the Land Acquisition Act. Other defendant nos. 8 to 39 did
not file any written statement and they were proceeded ex
parte vide order dated 22.03.1983 and 06.10.1983.
2.1 The learned Trial Court initially framed four issues as
under:
“Whether the notification dated 16.01.1969
under Section 6 of the Land Acquisition Act with
respect to the land in dispute is illegal due to non
satisfaction of the appropriate authority as to the
existences of the public purpose? OPP
2. Whether the defendants withdrew from the
acquisition proceedings? OPP
3. What is the effect of Letter dated 10.01.1967
and February, 1968 filed as Annexure D and G to the
Plaint? OPP.
4. Relief”
3
2.2 That thereafter one additional preliminary issue was
framed on 12.12.1995 as under:
“Whether Civil Court has jurisdiction to go into
the validity of the notification under Section 4 and 6
under Land Acquisition Act?”
2.3 By judgment and decree dated 12.01.2000, the learned
Trial Court decreed the suit. It is the case on behalf of the
appellant – DDA that despite the learned Trial Court giving a
finding that the Civil Court had no jurisdiction to go into the
question of validity and legality of the notification under
Section 4 of the Act, it decreed the suit and held that the
notifications in question ceased to exist although the
notification under Section 48 of the Act had not been issued.
The contesting defendants were restrained from dispossessing
the plaintiffs and other coowners land 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 of 2001. The original plaintiff no.1 was arrayed
as Respondent No.38 whereas LRs of plaintiff no.2 and
defendant no.8 were arrayed as Respondent no.39 (2 – 10),
4
and other defendants 939 were arrayed as Respondent nos.
737 in the appeal. The appeal was admitted for hearing.
The original plaintiff/respondent nos. 38 & 39 were
represented by counsel. That some of the respondents
(original defendants) out of respondent nos. 7 to 37 (out of
original defendant nos. 9 to 39) were not served as some of
them had died. By order dated 09.07.2007 the Division
Bench of the High Court dismissed the entire appeal as
having abated by observing as under:
"Many respondents have died during the
pendency of the appeal but no steps have been taken
by the appellant to bring their Legal Representatives
on record.
This appeal accordingly stands abated.”
2.5 That the appellant – DDA filed Review Petition No.314 of
2008 seeking review of the order dated 09.07.2007 dismissing
the appeal as having abated. The High Court issued notice on
03.09.2008 which remained unserved till the decision in the
impugned order dated 13.01.2012. In the meantime, the
original plaintiff no.1 Shri Diwan Chand Anand was reported
to have expired on 16.11.2010 and after ascertaining about
his legal representatives, application for substitution, being
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CM No.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 dismissed the review application and has
refused to recall the order dated 09.07.2007 dismissing the
appeal as having abated. The original order passed by the
High Court dated 09.07.2007 dismissing the main appeal as
having abated and the subsequent order dated 13.01.2012
dismissing the review application and refusing to recall the
order dated 09.07.2007 are the subject matter of the present
appeals.
3. Shri Sanjay Poddar, learned Senior Advocate has
appeared on behalf of the appellant – DDA and Shri Shyam
Divan, learned Senior Advocate has appeared on behalf of the
contesting respondent nos.33 and Shri Sunil Gupta, learned
Senior Advocate has appeared on behalf of respondent nos. 3
to 40.
4. Shri Poddar, learned Senior Advocate appearing on
behalf of the appellant – DDA has vehemently submitted that
the High Court has dismissed the appeal as abated solely on
6
the ground of failure on the part of the appellant to bring on
record the legal representatives of certain respondents
without going into the question as to whether the presence of
such persons was necessary and also without deciding the
application being CM No.22449 of 2011 (for substitution of
legal representatives of original plaintiff Shri Diwan Chand
Anand).
4.1 It is submitted that as a matter of fact the appeal has
not been dismissed on the ground of nonsubstitution of
plaintiffs, who are necessary parties. It is contended that the
appeal as a whole cannot be treated as abated on failure to
substitute the legal representative of such defendants who
even did not file written statement and even remained ex
parte, in view of the provisions of Order 22 Rule 4(4) of the
Code of Civil Procedure (for short ‘CPC’).
4.2 It is further urged that the High Court has dismissed the
appeal on hyper technical ground without examining the core
issue, as to, whether, the Appeal can be heard in the absence
of such respondents/defendants or not.
7
4.3 It is also submitted that even during the course of the
hearing of the SLPs, the contesting respondents have argued
that said two plaintiffs filed the suit on behalf of other co
owners/defendants and they were prosecuting the suit on
their behalf though these defendants remained exparte and
thus the learned Trial Court rightly passed the decree in their
favour. Reliance was placed on behalf of the appellants upon
the decision of this Court in the case of A. Viswanatha Pilliai
and others vs. The Special Tehsildar for Land Acquisition
No.4 and others, (1991) 4 SCC 17 in support of the
submission that one coowner can prefer and prosecute the
legal remedies for and on behalf of other coowners. It is
submitted that applying the same analogy, the same coowner
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, then they are deemed to have
represented the same in the appeal. It is submitted that the
respondents/defendants who died did not file written
statement and remained exparte and therefore they were not
necessary parties for adjudication of the appeal. Reliance is
8
placed upon the decision of this Court in the case of Mata
Prasad Mathur vs. Jawala Prasad Mathur, (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
whether the appeal abets as a whole has to depend upon facts
of each case and no straight formula is applicable since each
case has its own peculiarities. It is submitted that the
Hon’ble High Court has failed to examine this important and
vital aspect which was required to be considered as observed
and held by the Constitution Bench Judgment of this Hon’ble
Court 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
Judgment this Hon’ble Court has further held that the
provisions of Order 22 Rule 4 CPC are required to be applied
liberally with the object of protecting the rights of the parties
and not to destroy the same. It is contended that when the
9
land is sought to be acquired and meant for a public purpose
as in the instant case interest of justice warrants that the
appeal be heard on 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/appeals on the alleged ground of nonimpleadment of
the LRs of Jagdish Anand in the present SLPs/appeals who
was one of the legal heirs of original plaintiff no.2 and
defendant no.8, it is submitted that Jagdish Anand was one of
the legal representatives of original plaintiff no.2 and
defendant no.8, out of the 10. That the other legal
representatives are already on record and therefore as the
estate is represented by the other legal representatives the
present appeals can proceed in the presence of the other legal
representatives who are already on record as all of them
represent the estate of their father and mother.
4.7 So far as the submission on behalf of the contesting
respondents that on the issue of finality of judgment/decree
on account of nonsubstitution of legal representatives and/or
there may be conflicting or inconsistent decrees is concerned,
10
it is submitted that as such the judgment and decree passed
by the learned Trial Court is a nullity being without
jurisdiction as this Hon’ble Court in the case of
State of Bihar
vs. Dharender Kumar, (1995) 4 SCC 229 has held that the
Civil Court has no jurisdiction to entertain a civil suit in
respect of the Land Acquisition Proceedings/Notifications and
cannot pass an injunction order to restrain the government
from taking possession. It is submitted that the decree being
a nullity the validity of such a decree can be questioned
whenever and wherever it is sought to be relied upon, even at
the stage of execution and even at the collateral stage of
proceedings. It is submitted that the defect of jurisdiction as
to the subject matter of the suit land, strikes at the root of the
matter and such a defect cannot be cured even by consent of
the parties.
4.8 Now in so far as the submission on behalf of the
contesting respondents, that there is a huge delay in
challenging the original order dated 09.07.2007 passed in the
First Appeal, it is submitted that the appellant was
prosecuting the Review Application which was filed in the year
11
2008 which remained pending till 13.01.2012. That the delay
in preferring the review was condoned by the High Court.
Therefore, the appellant is entitled to seek exclusion of the
period during the pendency of the review petition and the
same has been challenged in the present proceeding. It is
submitted that the submission of the respondents in this
regard is liable to be rejected. This is because as observed
and held by this Court in the case of Esha Bhattacharjee vs.
Managing Committee of Ragunathpur Nafar Academy and
others, (2013) 12 SCC 649 as well as in the recent decision
in the case of
Radha Gajapathi Raju & Ors. vs. P. Maduri
Gajapathi Raju & Ors. In Civil Appeal No.69746975/2021
arising out of SLP (C) No.33733374 of 2020 decided on
pendency of the proceedings in another Court
22.11.2021
can be said to be a sufficient ground for condonation of delay.
Making above submissions and relying upon the above
decisions, it is prayed to allow the present appeals, set aside
the orders passed by the High Court dismissing the appeal as
a whole as having abated due to nonbringing the legal
representatives of some of the respondents – original
12
defendants on record and to direct to decide the main appeal
on merits.
5. While opposing the present appeals, learned Senior
Advocates appearing on behalf of the contesting respondents,
have, firstly, submitted that as such there is a huge delay of
1811 days in filing Civil Appeal No.2398 of 2022 against the
main order dated 09.07.2007 with no plausible justification
and explanation. As a matter of fact, even the review petition
before the High Court was barred by limitation by 378 days.
5.1 It is further submitted by Learned Senior Advocates on
behalf of the Contesting Respondents that in order to
appreciate the controversy before the learned Trial Court, few
facts are required to be considered which are as under:
“1. Plaintiffs 1 & 2, Diwan Chand Anand and Smt.
Chanan Kanta Anand, along with Sh. Dharam Chand
Anand, Sh. Gian Chand etc. were migrants from
Lahore, Pakistan. The said plaintiffs along with Sh.
Dharam Chand Anand & others, in and around
194748, purchased the disputed land, situated in
Village Kharera, Tehsil Mehrauli, bearing Khasra
no.393, 394 & 395, admeasuring 30 bighas 6 biswas
of land, along with super structure, from one Sh.
Mohd Ishaq. Sh. Dharam Chand Anand restarted
his business of body building on Trucks by
13
constructing a factory on the said parcels of land in
the name of Anand Automobiles and supplied bus
bodies to the Military.
2. Since Mohd Ishaq migrated to Pakistan, the
properties were claimed by Custodian of Evacuee
Properties. Representation was made by the
Plaintiffs & others to denotify the same as Evacuee
th
Property. The same was duly considered and on 5
December 1953, the Custodian of Evacuee Properties
confirmed the sale of the said land with the super
structure, in favour of Plaintiffs & other cosharers.
Sale Certificate was filed with the plaint. The said
land is situated within “Lal Dora”.
3. Subsequently, two Deeds of Conveyance with
respect to 30 bighas 6 biswas of land, were executed
by the President of India, in the year 1962, in favour
of the said Plaintiffs along with Sh. Dharam Chand
Anand, Sh. Gian Chand & other cosharers. The
deeds neither specified the shares of he said six
persons in the parcels of land nor allocated or
demarcated any portions of the land between them.
4. In the year 1964, Notification under Section 4 of
the Land Acquisition Act, 1894 was issued in respect
to number of parcels of land including the aforesaid
land.
st
5. On 1 May, 1964, the cosharers filed objections
against the notification and nothing was heard for
th
almost 5 years. On 19 September, 1966, one of the
cosharer of the said property, made representation
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
st
by notification dated 21 March, 1964
th
7. Release Policy: On 7 January, 1967, Central
Govt. made a policy decision that lands which were
isolated and situated amidst built up areas and not
required for public purposes were to be released from
th
acquisition. On 10 January, 1967, the Central
Govt. wrote to one of the coowners, viz Shiv Raj
14
Bahadur that Delhi Administration has been directed
to denotify the land in dispute.
th
8. Thereafter, on 6 February, 1967, the Lt.
Governor of Delhi wrote to Central Govt. confirming
necessary draft to denotify the land to ensure
directions.
th
9. Again on 10 October 1967, one of the cosharer
made another representation requesting for release of
land.
th
10. On 9 February 1968, the GoI wrote to Delhi
Administration that decision in letter dated
23.12.1966 stands and directed to denotify the
parcels of land, which are subject matter of the SLPs.
th
11. However, on 16 January, 1969, Notification
under Section 6 of the Land Acquisition Act was
issued with respect to the land aforesaid.
12. Two out of the six persons, in whose favour the
Deeds of Conveyance were executed, viz Dewan
Chand Anand & Chanan Kanta Anand w/o Dharam
Chand Anand, filed a suit in the High Court of Delhi,
in the year 1974, seeking declaration that the
Notification dated 21.03.1964 issued under Section 4
of the Land Acquisition Act stands withdrawn and or
cancelled/waived and that the Section 6 Notification
is malafide, null and void, inoperative in 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 Central Government, upon being
approached by some of the owners of the land, who
were impleaded as defendants, had by a
communication to the then Delhi Administration
stated that the subject land was not required for the
stated purpose and thus the Notification under
Section 6 was bad and without application of mind.
13. The suit was instituted by 2 plaintiffs i.e. 2 of the
coowenrs. However, out of the remaining 4 persons,
in whose favour conveyance deeds were executed, 3
had already died and accordingly in the said suit,
Dharam Chand Anand, the coowner and the legal
heirs of the remaining 3 coowners had to be and
were also impleaded as defendants, as being proper
15
parties, besides the Land Acquisition Authorities and
DDA.”
5.2 It is submitted that the other owners of the land
impleaded as defendants, did not contest the suit, as the suit
was in mutual interest. A preliminary issue, namely, whether
a civil suit impugning the notifications under Sections 4 & 6
of the Act is maintainable was decided against the plaintiffs.
However, ultimately, the suit was decreed vide judgment and
decree dated 12.01.2000 by which a decree of declaration was
passed holding that the notifications under Sections 4 & 6 of
the Act had ceased to exist even before filing of the suit and
the suit lands stood released from the ambit and scope of the
notifications. The learned Trial Court also passed a decree of
permanent injunction restraining the official defendants from
dispossessing the plaintiffs and other cosharers from the suit
property. It is submitted that thereafter in an appeal
preferred by DDA alone, a number of opportunities were given
to bring the legal representatives (LRs) of some of the
respondents on record. But the DDA failed to bring on record
the LRs of many of the respondents who died. It is submitted
that, at one point of time, the suit was dismissed for non
16
prosecution which was later restored. Several of the five
respondents i.e. the original purchasers of the lands and their
heirs died. Even the plaintiff – original plaintiff no.1 –
respondent died on 16.11.2010. Though opportunities were
given for substitution of LRs. They were not substituted. It is
submitted that in these circumstances, the High Court vide
final order dated 09.07.2007 dismissed the appeal as abated.
It is submitted that owing to the original plaintiff no.1 –
respondent dying and also a number of other private
respondents dying, the High Court in the said order, appears
to have not given their details. It is submitted that however, it
is not in dispute that a large number of private respondents
did die during the pendency of the appeal and the LRs were
not brought on 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 the nonsubstitution of legal representatives of some of the
respondents owners of the land and/or whether on demise of
the some of the respondents during the pendency of the first
appeal and the appellant therein not bringing the LRs on
17
record despite repeated opportunities, whether the entire
appeal stood abated or only in so far as the particular
deceased respondents, it is vehemently submitted by the
learned Senior Advocate for the contesting respondents that
there would be conflicting decrees qua the respondents who
are already served and whose LRs are brought on record and
qua the deceased respondents whose legal representatives are
not brought on record. It is submitted by the learned Senior
Advocate that decree dated 12.01.2000 will be in favour of the
legal representatives of all the deceased respondents and if the
appeal succeeds in High Court, there will be conflicting
decrees since the property is jointly owned and the decree is
inseparable or inseverable as the property remains undivided
with each party having right, title and interest in the entire
property.
5.4 It is submitted that factually there were two deeds of
conveyance in respect of the entire land in favour of six
owners, without demarcating their respective shares. Thus, in
law each of the six owners or their heirs were the owners of
the entire land having right, title and interest in every part
18
and parcel of land along with others and it cannot be said that
the said owners were exclusive owners of any portion of the
suit lands. It is submitted that in the case of
K.
Vishwanathan Pillai versus Special Tehsildar for Land
Acquisition No.IV, (1991) 4 SCC 17, it has been held that
one of the coowners can file a suit and recover the property
against the stranger and the decree would enure to the benefit
of all the coowners. It is submitted that no coowner has
right, title and interest in any of the item or portion of the
property but has 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
Court vide judgment and decree had decreed that firstly, the
notifications had ceased to exist even before filing of the suit
and therefore, the suit land stood released from the scope of
the said notifications. Secondly, the permanent injunction
was granted in favour of the plaintiffs and private respondents
(cosharers) and against the land acquisition authorities as
well as the DDA, where the DDA was restrained from
19
dispossessing them. It is submitted that considering the
aforesaid facts of the case, in the absence of legal
representatives of the deceased respondents, the decree in
respect of the suit property would become final visàvis the
said persons. But in the present proceedings in respect of the
selfsame suit property are allowed to continue as against the
other respondents, the enforcement of the decree consequent
to the possible success of the proceedings would lead to
conflict of decrees not permissible in law. The relief of
permanent injunction in favour of the deceased respondents
would continue to be in force, whereas it would not be in force
as against the respondents. This also will result in passing of
two conflicting decrees which shall be incapable of
enforcement.
5.6 It is submitted that the present is the case of “joint and
indivisible decree”/“joint and inseverable or inseparable
decree”. Hence when there is omission or lapse or failure to
bring on record the LRs of one or more deceased respondents
on time, it would be fatal and would require the appeal to be
dismissed in toto and it would result in abatement of entire
20
proceedings. Otherwise, inconsistent or contradictory decrees
would result with respect to same subject matter visàvis the
others.
Making the above submissions it is vehemently
submitted that the High Court has rightly dismissed the entire
appeal as having abated and the same is not required to be
interfered with by this Court.
6. Making above submissions and relying upon the
decisions of this Court in the case of State of Punjab vs.
Nathu Ram, AIR 1962 SC 89 ; Hemareddi vs.
;
Ramachandra, (2019) 6 SCC 756 Sunkara
Lakehminarassama vs. Sagi, (2019) 11 SCC 787 and the
recent decision of this Court Venigalla Koteswaramman vs.
it is prayed to
Malempati Suryamba, (2021) 4 SCC 246,
dismiss the present appeals.
7. We have heard learned counsel for the respective parties
at length.
21
8. At the outset, it is required to be noted that by order
dated 09.07.2007, the High Court dismissed the First Appeal
preferred by the appellant herein as having abated on the
ground that with respect to some of the original defendants –
respondents in appeal who died, their legal representatives
were not brought on record. Thus, on nonbringing the legal
representatives of some of the respondents who died during
the pendency of the appeal on record, the High Court
dismissed the appeal as a whole as having abated. The said
order dated 09.07.2007 reads as under:
“R.F.A. No.280/2001
Many respondents have died during the pendency of
the appeal but no steps have been taken by the
appellant to bring their Legal representatives on
record. This appeal accordingly stands abated.”
8.1 Thereafter the appellant preferred the review application
in the year 2008 which has been dismissed by the High Court
by the impugned order dated 13.01.2012. At this stage, it is
required to be noted that there was a delay in preferring the
Review Application which came to be condoned by the High
Court. That subsequently the appellant herein – DDA –
22
original appellant, preferred the present two appeals, one,
challenging the original order dated 09.07.2007 dismissing
the appeal as a whole as having abated and the second,
challenging the order dismissing the review application. It is
sought to be contended on or behalf of the contesting
respondents that there is a huge delay in preferring the appeal
challenging the order dated 09.07.2007 and therefore present
Appeal may not be entertained. However, the appellant was
bona fide prosecuting the review application. That after
dismissal of the review application in which the appellant
prayed to review and recall the order dated 09.07.2007, that
the appellant has preferred two separate appeals, one,
challenging the dismissal of the review application and
another, challenging the original order dated 09.07.2007.
Therefore, once the appellant was bona fide prosecuting the
review application, it was justified in waiting for the outcome
of the Review Application. If, without waiting for the outcome
of the review application, the appellant would have preferred
the appeal at that stage, the appellant would have been non
suited on the ground of the pendency of the review application
and the appellant would have been told to wait till the
23
outcome of the review application. Therefore, in the facts and
circumstances of the case the time taken in prosecuting the
review application is to be excluded and the appeal preferred
challenging the order dated 09.07.2007 is to be considered on
merits. Therefore, the objection on behalf of the contesting
respondents not to consider the substantive appeal
challenging the order dated 09.07.2007 on merits is hereby
overruled and we may proceed to consider the order dated
09.07.2007 dismissing the appeal as a whole as having abated
on merits.
8.2 Before we consider the order dated 09.07.2007 on merits
the relevant pleadings and the necessary averments in the
plaint which would have a direct bearing on the controversy in
the present appeal are required to be referred to. It is
required to be noted and it is not in dispute that the suit was
filed by only two coowners and rest of the coowners/co
sharers were joined as defendants as proper parties.
According to the original plaintiffs, the land in question was
owned jointly by the original plaintiffs and the other co
24
sharers which can be culled out from the following averments
in the plaint:
“4. That by order dated 5th December, 1953, the
Custodian of Evacuee Properties confirmed the sale
regarding the said land in favour of the Plaintiffs and
the other cosharers on condition that they will pay the
amount of Rs. 65,399.00 to the Custodian of Evacuee
Properties. That amount of Rs. 65,339.00 was paid to
the Custodian by the Plaintiffs and other Cosharers.
5. That on the 26th April, 1962, the Custodian of
Evacuee Properties issued Sale Certificates regarding
the said land in favour of the Plaintiff and the other co
sharers. A copy of the Sale Certificate is attached
herewith as Annexure "B".
7. That after the purchase, the Plaintiffs and the
other cosharers began to reside on land bearing Khasra
No. 395 and some of the cosharers made a number of
improvements and constructions from 194748 to 1963
in the land comprised in the said Khasra and some co
sharers also set up an Automobile Factory for the
manufacture of automobiles and ancillary parts and
body building for mechanically propelled vehicles, in
the said land.
11. That on 1st May, 1964, the cosharers of this
property filed objections against the said Notification
and thereafter for almost 5 years, no hearing was fixed
for the said objections and no 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 cosharers of this property,
made a representation against the proposed acquisition
to the Government of India, through the Hon'ble
Minister Shri Mehar Chand Khanna of the Ministry of
Works & Housing. A copy of the representation made,
is attached herewith as Annexure "C".
25
44. That the Plaintiffs and the other cosharers
have all along been harassed for reasons unknown, for
acquiring the said property by the Local Administration
in spite of two specific directions and decisions of the
Central Government to denotify the said property.
(45) That the legal representatives of the co
sharers who had died, were entitled to be heard and
although it was brought to the notice of the Land
Acquisition Collector that there were legal
representatives of the deceased owners, but they were
not given any 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 cosharers
in the land in dispute and have been impleaded as
proper parties to the suit”
8.3 That the plaintiffs being coowners/cosharers of the
entire suit land in question prayed for the following reliefs:
“(a) It is declared that theentire proceedings
adopted under Section SA of the Land Acquisition Act
are malafide, illegal and incomplete violation of the
letter and spirit of. the Land Acquisition Act and is
contrary to the principles of natural justice, fairplay,
equity and good conscience.
(b) It is declared that the Notification no.
F.19(93A)/63 L&H(ii) dated 21st March, 1964
issued under, Section 4 of the Land Acquisition Act
stands withdrawn and/ or cancelled and waived by
your own conduct.
(c) It be declared that the Notification No.
F.19(93A)/63 L&H dated 16th January, 1969
issued under Section 6 of the Land Acquisition Act is
malafide, illegal, null and void, ultra vires,
inoperative in Law and without jurisdiction and/ or
in excess of jurisdiction.
26
(d) A permanent injunction be issued against
the Defendants not to dispossess the Plaintiffs and
the other cosharers from the property and land
bearing Khasra no. 395, 394 and 708/393 of Village
Kharera.
(e) An ad interim exparte injunction in terms of
the proceedings prayer.
(f) The costs of the suit be allowed to the
Plaintiff against the Defendants.
(g) The Defendants be ordered to pay to the
Plaintiffs the cost of incidentals.
(h) The Court may pass such other and further
orders as may be just, proper and necessary under
the circumstances of the case.”
8.4 Thus, from the aforesaid it can be seen that the original
plaintiffs – two coowners/cosharers of the entire land in
question fought with respect to the entire land belonging to
the plaintiffs and the coowners jointly. It can be said that the
original plaintiffs instituted the suit for themselves as well as
for and/or on behalf of the other coowners – cosharers with
respect to the entire land jointly owned by all of them. Thus,
it can safely be held that the entire estate was represented
through original plaintiffs in which even the cosharers/co
owners were also joined as defendants as proper parties.
Therefore, even when the learned Trial Court passed the
judgment and decree, it passed the judgment and decree with
27
respect to the entire land and even granted the permanent
injunction to protect the ownership and protection of the
plaintiffs as well as the other cosharers over the suit land. In
light of the above factual scenario the order passed by the
High Court dated 09.07.2007 in dismissing the first appeal as
a whole as having been abated on not taking step to bring on
record the legal representatives of some of the original
defendants/respondents in the appeal is required to be tested
and/or considered in light of the settled legal principles.
9. While considering the impugned order passed by the
High Court dated 09.07.2007, dismissing the appeal as having
abated, the law on abatement and on Order 22 CPC is
required to be discussed. Order 22 CPC fell for consideration
before this Court in the recent decision in the case of
Venigalla Koteswaramman (supra) in which this Court
considered in detail the earlier decisions of this Court in the
case of Nathu Ram (supra) as well as the other decisions
including the later decision in the case of
Hemareddi (supra).
28
The relevant discussion on Order 22 CPC in paragraphs 42 to
44.8 are extracted as under:
The rules of procedure for dealing with death,
“42.
marriage, and insolvency of parties in a civil litigation
are essentially governed by the provisions contained
in Order 22 of the Code.
Though the provisions in Rule 1 to Rule 10
42.1.
A of Order 22 primarily refer to the proceedings in a
suit but, by virtue of Rule 11, the said provisions
apply to the appeals too and, for the purpose of an
appeal, the expressions “plaintiff”, “defendant” and
“suit” could be read as “appellant”, “respondent” and
“appeal” respectively.
Rule 1 of Order 22 of the Code declares that
42.2.
the death of a plaintiff or defendant shall not cause
the suit to abate if the right to sue survives. When
read for the purpose of appeal, this provision means
that the death of an appellant or respondent shall
not cause the appeal to abate if the right to sue
survives.
Rule 2 of Order 22 of the Code ordains the
42.3.
procedure where one of the several plaintiffs or
defendants dies and right to sue survives to the
surviving plaintiff(s) alone, or against the surviving
defendant(s) alone. The same procedure applies in
appeal where one of the several appellants or
respondents dies and right to sue survives to the
surviving appellant(s) alone, or against the surviving
respondent(s) alone. The procedure is that the Court
is required to cause an entry to that effect to be made
on record and the appeal is to proceed at the
instance of the surviving appellant(s) or against the
surviving respondent(s), as the case may be.
29
42.4. However, by virtue of Rule 4 read with Rule
11 of Order 22 of the Code, in case of death of one of
the several respondents, where right to sue does not
survive against the surviving respondent or
respondents as also in the case where the sole
respondent dies and the right to sue survives, the
contemplated procedure is that the legal
representatives of the deceased respondent are to be
substituted in his place; and if no application is
made for such substitution within the time limited by
law, the appeal abates as against the deceased
respondent.
42.5. Of course, the provisions have been made
for dealing with the application for substitution filed
belatedly but the same need not be elaborated in the
present case because it remains an admitted fact
that no application for substitution of legal
representatives of Defendant 2 (who was Respondent
3 in AS No. 1887 of 1988) was made before the High
Court.
42.6. The relevant provisions contained in Rules
1, 2, subrules (1), (2) and (3) of Rule 4 and Rule 11
of Order 22 could be usefully reproduced as under
“ 1. No abatement by party's death, if right to
sue survives .—The death of a plaintiff or defendant
shall not cause the suit to abate if the right to sue
survives.
2. Procedure where one of several plaintiffs or
defendants dies and right to sue survives .—
Where there are more plaintiffs or defendants than
one, and any of them dies, and where the right to sue
survives to the surviving plaintiff or plaintiffs alone,
or against the surviving defendant or defendants
alone, the Court shall cause an entry to that effect to
30
be made on the record, and the suit shall proceed at
the instance of the surviving plaintiff or plaintiffs, or
against the surviving defendant or defendants.
*
4. Procedure in case of death of one of several
defendants or of sole defendant .—(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 subrule (1), the suit shall
abate as against the deceased defendant.
*
11. Application of Order to appeals .—In the
application of this Order to appeals, so far as may be,
the word “plaintiff” shall be held to include an
appellant, the word “defendant” a respondent, and
the word “suit” an appeal.”
43. For determining if Order 22 Rule 2 could
apply, we have to examine if right to sue survived
against the surviving respondents. It is not the case
that no legal heirs were available for Defendant 2. It
is also not the case where the estate of the deceased
Defendant 2 passed on to the remaining parties by
survivorship or otherwise. Therefore, applicability of
Order 22 Rule 2 CPC is clearly ruled out.
31
44. Admittedly, steps were not taken for
substitution of the legal representatives of Defendant
2, who was Respondent 3 in AS No. 1887 of 1988.
Therefore, subrule (3) of Rule 4 of Order 22 of the
Code directly came into operation and the said
appeal filed by Defendants 16 to 18 abated against
Defendant 2 (Respondent 3 therein). We may
profitably recapitulate at this juncture that in fact,
the other appeal filed by Defendants 4, 13 and 14 (AS
No. 1433 of 1989) was specifically dismissed by the
High Court as against the deceased Defendant 2 on
2542006.
44.1. Once it is found that the appeal filed by
Defendants 16 to 18 abated as against Defendant 2
(Respondent 3), the question arises as to whether
that appeal could have proceeded against the
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 the effect
of abatement of appeal against one respondent in
case of multiple respondents, as enunciated and
explained by this Court.
44.2. The relevant principles were stated and
explained in depth by this Court in State of
Punjab v. Nathu Ram [ State of Punjab v. Nathu Ram ,
AIR 1962 SC 89]. In that case, the Punjab
Government had acquired certain pieces of land
belonging to two brothers jointly. Upon their refusal
to accept the compensation offered, their joint claim
was referred to arbitration and an award was passed
in their favour that was challenged by the State
Government in appeal before the High Court. During
pendency of appeal, one of the brothers died but no
application was filed within time to bring on record
his legal representatives. The High Court dismissed
32
[ Province of East Punjab v. Labhu Ram , 1954 SCC
OnLine P&H 132] the appeal while observing that it
had abated against the deceased brother and
consequently, abated against the surviving brother
too. The order so passed by the High Court was
questioned before this Court in appeal by certificate
of fitness.
44.3. While dismissing the appeal and affirming
the views of the High Court, this Court in Nathu Ram
case [ State of Punjab v. Nathu Ram , AIR 1962 SC 89]
enunciated the principles concerning the effect of
abatement and explained as to why, in case of joint
and indivisible decree, the appeal against the
surviving respondent(s) cannot be proceeded with
and has to be dismissed as a result of its abatement
against the deceased respondent; the basic reason
being that in the absence of the legal representatives
of deceased respondent, the appellate court cannot
determine between the appellant and the legal
representatives anything which may affect the rights
of the legal representatives. This Court pointed out
that by abatement of appeal qua the deceased
respondent, the decree between the appellant and the
deceased respondent becomes final and the appellate
court cannot, in any way 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 1962 SC 89] , AIR pp. 9091, paras 46 &
8)
“ 4 . It is not disputed that in view of Order 22 Rule
4, Civil Procedure Code, hereinafter called the Code,
the appeal abated against Labhu Ram, deceased,
when no application for bringing on record his legal
representatives had been made within the time
33
limited by law. The Code does not provide for the
abatement of the appeal against the other
respondents. Courts have held that in certain
circumstances, the appeals against the co
respondents would also abate as a result of the
abatement of the appeal against the deceased
respondent. They have not been always agreed with
respect to the result of the particular circumstances
of a case and there has been, consequently,
divergence of opinion in the application of the
principle. It will serve no useful purpose to consider
the cases. Suffice it to say that when Order 22 Rule 4
does not provide for the abatement of the appeals
against the corespondents of the deceased
respondent there can be no question of abatement of
the appeals against them. To say that the appeals
against them abated in certain circumstances, is not
a correct statement. Of course, the appeals against
them cannot proceed in certain circumstances and
have therefore to be dismissed. Such a result
depends on the nature of the relief sought in the
appeal.
5 . The same conclusion is to be drawn from the
provisions of Order 1 Rule 9 of the Code which
provides that no suit shall be defeated by reason of
the misjoinder or nonjoinder of parties and the court
may, in every suit, deal with the matter in
controversy so far as regards the rights and interests
of the parties actually before it. It follows, therefore,
that if the court can deal with the matter in
controversy so far as regards the rights and interests
of the appellant and the respondents other than the
deceased respondent, it has to proceed with the
appeal and decide it. It is only when it is not possible
for the court to deal with such matters, that it will
have to refuse to proceed further with the appeal and
therefore dismiss it .
34
6 . 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 appeal may lead to the
court's coming to a decision which 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 subjectmatter 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, be
ineffective, that is to say, it could not be successfully
executed .
*
8 . The difficulty arises always when there is a joint
decree. Here again, the consensus of opinion is that if
the decree is joint and indivisible, the appeal against
the other respondents also will not be proceeded with
and will have to be dismissed as a result of the
abatement of the appeal against the deceased
respondent. Different views exist in the case of joint
decrees in favour of respondents whose rights in the
subjectmatter of the decree are specified. One view
35
is that in such cases, the abatement of the appeal
against the deceased respondent will have the result
of making the decree affecting his specific interest to
be final and that the decree against the other
respondents can be suitably dealt with by the
appellate court. We do not consider this view correct.
The specification of shares or of interest of the
deceased respondent does not affect the nature of the
decree and the capacity of the joint decreeholder to
execute the entire decree or to resist the attempt of
the other party to interfere with the joint right
decreed in his favour. The abatement of an appeal
means not only that the decree between the appellant
and the deceased respondent has become final, but
also, as a necessary corollary, that the appellate court
cannot, in any way, modify that decree directly or
indirectly. The reason is plain. It is that in the absence
of the legal representatives of the deceased
respondent, the appellate court cannot determine
anything between the appellant and the legal
representatives which may affect the rights of the
legal representatives under the decree. It is
immaterial that the modification which the Court will
do is one to which exception can or cannot be taken.”
9.1 After referring to the decision of this Court in the case of
Nathu Ram (supra), in the case of Vennigalla
Koteswaramma vs. Malampati Suryamba and Others,
, it is observed by this Court that the
(2003) 3 SCC 272
nature and extent of the abatement in a given case and the
decision to be taken thereon will depend upon the facts of
36
each case and, therefore, no exhaustive statement can be
made either way and that the decision will ultimately depend
upon the fact whether the decree obtained was a joint decree
or a separate one. It is further observed that this question
cannot and should not also be tested merely on the format of
the decree under challenge or it being one or the manner in
which it was dealt with before or by the Court which passed it.
Thus, as observed and held by the Court:
(i) The death of a plaintiff or defendant shall not cause
the suit to abate if the right to sue survives;
(ii) If t here are more plaintiffs or defendants than one,
and any of them dies, and where the right to sue
survives to the surviving plaintiff or plaintiffs alone, or
against the surviving defendant or defendants alone,
the Court shall cause an entry to that effect to be
made on the record, and the suit shall proceed at the
instance of the surviving plaintiff or plaintiffs, or
against the surviving defendant or defendants (Order
22 Rule 2);
37
(iii) 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. Where within the time limited
by law no application is made under subrule 1 of
Order 22 Rule 4, the suit shall abate as against the
deceased defendant;
(iv) the provision of Order 22 shall also apply to the
appeal proceedings also.
9.2 As observed and held by this Court in the aforesaid
decisions while considering whether the suit/appeal has
abated due to nonbringing the legal representatives of
plaintiffs/defendants or not, the Court has to examine if the
right to sue survives against the surviving respondents.
Thereafter the Appellate Court has to consider the question
whether nonbringing the legal representatives of some of the
38
defendants, the appeal could have proceeded against the
surviving respondents. Therefore, the Appellate Court has to
consider the effect of abatement of the appeal against each of
the respondents in case of multiple respondents.
9.3 Applying the law laid down by this Court in the aforesaid
decisions to the impugned judgment and order dated
09.07.2007 passed by the High Court, it appears that the
High Court has mechanically and without holding any further
enquiry which was required to be conducted as observed
hereinabove, has simply dismissed the entire appeal as having
abated due to nonbringing on record the legal representatives
of some of the respondents – the original defendants who, as
such, neither contested the suit nor filed the written
statements. At the cost of repetition, it is observed that as
such the original plaintiffs instituted the suit being co
owners/cosharers and for and on behalf of all the co
owners/cosharers of the entire land sought to be acquired
under the Land Acquisition Act.
39
9.4 As observed and held by this Court in the case of K.
Vishwanathan Pillai (supra), the coowner is as much an
owner of the entire property as a sole owner of the property.
No coowner has a definite 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 parcel of the
joint property. He owns several parts of the composite
property along with others and it cannot be said that he is
only a part owner or a fractional owner in the property. It is
observed that, therefore, one coowner can file a suit and
recover the property against strangers and the decree would
enure to all the coowners. The aforesaid principle of law
would be applicable in the appeal also. Thus, in the instant
case, when the original plaintiffs – two coowners instituted
the suit with respect to the entire suit land jointly owned by
the plaintiffs as well as defendants nos. 9 to 39 and when
some of the defendants/respondents in appeal died, it can be
said that estate is represented by others – more particularly
the plaintiffs/heirs of the plaintiffs and it cannot be said that
on not bringing the legal representatives of the some of the co
40
sharers – defendants – respondents in appeal the appeal
would abate as a whole.
9.5 While passing the impugned order dated 09.07.2007, the
High Court has neither considered the relevant provisions of
CPC namely Order 22 Rule 1 to 11 nor held any enquiry
which was required to be conducted as observed hereinabove.
9.6 One another important aspect which is also required to
be noted is that the suit was filed challenging the acquisition
proceedings under the Land Acquisition Act, that too, with
respect to the land in question. It was the specific case on
behalf of the appellant and even the issue was framed by the
learned Trial Court on the jurisdiction of the Civil Court to
entertain the suit challenging the acquisition proceedings
under the Land Acquisition Act. From the findings recorded
by the learned Trial Court, it appears that though the learned
Trial Court held the issue of jurisdiction in favour of the
appellant herein, still thereafter it granted the relief and
decreed the suit which was the subject matter before the High
Court. Thus, according to the appellant DDA – the judgment
and decree passed by the learned Trial Court was a nullity
41
and wholly without jurisdiction. If that be so, then, another
question which may be required to 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 held that the
decree was a nullity and/or wholly without jurisdiction then
the decree will be nullity for all purposes. The aforesaid
aspect is also required to be determined.
9.7 In any case what would have been the consequences of
not bringing the legal representatives of some of the
respondents/defendants who died during the pendency of the
appeal and whether the right to sue survives against the
original plaintiffs and/or surviving respondents/defendants
was to be considered by the High Court, which the High Court
failed to consider in the instant case.
10. In view of the above discussion and for the reason stated
above both these appeals succeed. The impugned judgment
and order passed by the High Court dated 09.07.2007
dismissing the appeal as a whole as having abated for not
bringing the legal representatives of some of the
42
respondents/original defendants who died during the
pendency of the appeal is hereby set aside. The High Court to
consider the Appeal now in accordance with law and on its
own merits and in light of the observations made hereinabove,
more particularly, the High Court shall have to consider and
hold an enquiry, whether, on the death of some of the
respondents in the appeal (defendants in suit) the right to sue
against the remaining respondents – original plaintiffs/the
remaining original defendants would survive or not including
the fact that the estate is being represented by surviving
original plaintiffs/heirs of the original plaintiffs/surviving
defendants having a bearing on the enquiry to be held.
With these observations the present Appeals are Allowed
accordingly to the aforesaid extent. However, there shall be
no order as to costs.
…………………………………J.
(M. R. SHAH)
…………………………………J.
(B.V. NAGARATHNA)
New Delhi,
July 11, 2022.
43