[Cites 11, Cited by 0]
Gujarat High Court
Gail (India) Limited Through Umesh ... vs Ahmad Vali Asmal on 4 May, 2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2207 of 2018
With
R/FIRST APPEAL NO. 2208 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
In R/FIRST APPEAL NO. 2208 of 2018
With
R/FIRST APPEAL NO. 2209 of 2018
With
R/FIRST APPEAL NO. 2210 of 2018
With
R/FIRST APPEAL NO. 2211 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
In R/FIRST APPEAL NO. 2211 of 2018
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GAIL (INDIA) LIMITED `THROUGH UMESH PRASAD NARSINGH BHAGAT
Versus
AHMAD VALI ASMAL & ORS.
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Appearance:
MR VISHWAS K SHAH(5364) for the Appellant(s) No. 1
ABATED for the Defendant(s) No. 1
MS HEMALI SONI, AGP for the Defendant(s) No. 4,5
NOTICE SERVED for the Defendant(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 04/05/2026
ORDER
1. The common judgment and award in Land Acquisition
Case Nos.20 of 2002 to 26 of 2002 [lead LAR No.23 of 2002]
dated 14.06.2002 is assailed under Section 54 of the Land
Acquisition Act, 1894 ('the Act', for short) by the acquiring
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body.
2.1 The facts in brief are that the State Government, on
request of Acquiring Body, acquired the following lands
situated in village Umrej, Tal.Dist.Bharuch, for the public
purpose of construction of the Gandhar Gas Processing
Complex Colony
Sr LAR Nos. of 2022 Survey / Block Area
No. Nos. Hec. - Are. -Sq
mtr
1 22 88 00-95-10
89 00-52-61
2 23 86 00-64-75
87 01-05-22
3 24 90 paikee 01-14-83
4 25 90 paikee 01-12-81
5 26 91 paikee 00-68-80
2.2 The Notification under Section 4 of the Act is published
on 11.11.1997 followed by Notification under Section 6 of the
Act on 11.09.1998. The Special Land Acquisition Officer, in
Land Acquisition Case No.10 of 1999 [Old Case No.06 of
1997] awarded Rs.2600 per Are i.e. Rs.26.00 per sq mtr for
non-irrigated lands.
2.3 The claimants being aggrieved preferred Reference
under Section 18 of the Act before the Reference Court i.e.
Principal Senior Civil Judge, Bharuch, who after permitting
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both the parties to lead evidence, by impugned common
judgment and award held that the claimants are entitled to
amount of Rs.71.09 paisa per sq mtr as an additional
compensation for their acquired lands with statutory benefits
that brings the tenant to compensation of Rs.97.09 paisa per
sq mtr. The GAIL, being aggrieved, preferred this batch of
appeals challenging the said common judgment and award.
3. Heard learned advocate Mr.Vishwas Shah appearing for
the appellant - GAIL and learned Assistant Government
Pleader Mr.Hemali Soni. None remained present for the
original claimants.
4. The contentions made by the learned advocate
Mr.Vishwas Shah that the Reference Court without having any
cogent, compulsive and convincing evidence, has fixed the
compensation manifold. He would further submit that
granting of such huge compensation to the claimants, without
any basis of evidence, is absolute erroneous on the part of the
learned trial Court and, therefore, he submitted that the
impugned order may be set aside.
5. Learned Assistant Government Pleader Ms.Hemali Soni
supports the contentions made by learned advocate Mr.Shah
for the GAIL. None remained present for the original
claimants.
6. At the outset, this Court apt to refer paras:17, 18, 19, 20
21 and 22 of the impugned judgment.
"(17) Now, so far as the relevancy of earlier award is
concerned, claimants have relied upon the judgment of
Bholav bearing L.A.R.No.163/1998, a copy of that
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judgment is produced vide Exh.23 wherein in the then
Extra Assistant Judge, Bharuch awarded Rs.325/- per sq.
mtr. after deducting compensation paid by LAO. More
over the claimants have also relied upon the judgment of
Kanbivaga bearing L.A.R.No.561/1991 (Main), a copy of
that judgment is produced vide Exh.24, wherein the then
3rd Jl. Civil Judge (S.D.), Bharuch has awarded Rs.250/-
per Sq. Mtr. market value of the land. The claimants have
also relied upon the Certificate issued by the TDO with
regarding NA permission. They have also relied upon the
copy of Map of village Umraj vide Exh.26 and also relied
upon the map showing the simada of village Nandelav
vide Exh.27. They have also relied upon the Sale deed
vide Exh.38. They have also Map showing residential
Zone-1 surrounding acquired lands vide Exh.84. They
have also relied upon Zoning Certificate regarding
residential development of Survey Nos.85-86 of village
Umraj, Ta. Dist. Bharuch executed by the Bharuch
Ankleshwar Urban Development Authority vide Exh.85
and also relied upon Zoning Certificate regarding
residential development of Survey Nos.90-91 of village
Umraj, Ta. Dist. Bharuch executed by the Bharuch
Ankleshwar Urban Development Authority vide Exh.86.
(18). As against the above evidence of the claimants, the
referrers side have produced the documents i.e. judgment
same village Umraj bearing L.A.R.No.1489/89(main) vide
Exh.92, in which the then Principal Sr. Civil Judge,
Bharuch has awarded Rs.87.60Ps. as an additional
compensation.
(19). Claimants have relied upon the judgment of LAR
No.561/91(main) Exh.24. That judgment is belonging to
Kanbivaga a part of the city Bharuch. In that judgment
reference court has awarded Rs. 250/- per sq.meter
including compensation awarded by the Special Land
Acquisition Officer. As for as this documentary evidence is
concerned, the land was belonging to city Bharuch and
acquisition made for construction of road within the city
Village Kanbivaga is a part of Bharuch city and within the
boundary of Bharuch Nagarpalika. Not only that but the
road which was constructed on acquired land is
approached from Panchbatti to Dahej by pass. That area
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is a heart of city Bharuch. The claimant relied upon this
documentary evidence for obtaining Rs.250/- per sq.meter
for their acquired lands, which are belonging to village
Umraj, Now, the claimants have also produced the map of
Bharuch Taluka at vide Exh. 27. So far as this map
concerned, village Umraj is adjoining to Bharuch city but
it is not a part of Bharuch Nagarpalika. Not only that the
land acquired in judgment Exh.24 was belonging to
market area as well as possessing high potentiality.
However villante Umrai is concerned, there is no doubt
that it is nearest to Bharuch city but its potentiality is not
that much high which the potentiality of Kanbivaga land.
Moreover the present acquired lands are non agricultural
lands.
(20) Now, looking to map of Bharuch Taluka at vide Exh.
26, from which appears that village Umraj is adjoining
village of Bharuch city. Dahej by pass is also touching to
village Umraj. Not only that village Nadelav is also
adjoining to village Umraj. Village Nadelav is also
touching to Dahej by pass road and also touching to
border of Bharuch city. So village Nadelav and village
Umraj are on equal focting in map. So far as village
Chavaj is concerned, it is behind to the boundaries of
village Nadelav as well as village Umraj. Boundaries of
village Chavaj is also touching to village Umraj as well as
village Nadelav. So far as village Kasad and village Tham
are concerned. village Kasad is behind to village Umraj
and too far from Dahej by pass and also too far from
Bharuch city. So far as village Tham is cornered,
boundaries of village Tham is touching to village Umraj. It
is also behind to village Sherpura. So far as proximity is
concerned, villages Sherpura, Umraj and Nadelav are on
same footing and boundaries of all three villages are
touching to the boundaries of village Dahej by pass road
and not only that but their boundaries are touching to
Bharuch city area. So village Umraj, village Nadelav have
high potentiality rather than village Tham and village
Kasad.
(21). The claimants have also relied upon the Sale deed
which is produced vide Exh.38. On perusal of the sale
deed it transpires that it is of the year 1998, whereas in
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the matter before hand the notification U/s. 4 was issued
on dtd.11.11.1997. So, the sale deed is nearly of the
period of one year after the said land was acquired.
Furthermore, neither of the parties to the sale deed
being, examined by the claimants and on the basis of the
cross-examination of the claimant also, the claimant has
failed to prove that as on the date of notification U/s. 4
the price prevailing was according to the price claimed.
Furthermore, on perusal of the sale deed it is of the year
1998 and hence, the price which is shown previous to be
of that particular year and hence, also on the basis of
same as well as the discussion made above, in my view,
no reliance can be placed on the sale deed produced vide
Exh.38.
(22). According to Law, the situation of the land at the
time of acquisition is required to be taken into
consideration. Here in this case, an acquisition was made
in the year 1997and at that time the land under
acquisition was an agricultural land. On this aspect, Ld.
DGP Mr. P.N.Parmar of the referror Nos. 1 & 3 has relied
upon the judgment bearing L.A.R.No.1489/98(main), the
copy of which is produced vide Exh.92 and has argued
that here in this case also, the evaluation made by the
then Principal Sr. Civil Judge, Bharuch in
L.A.R.No.1489/98(main) is directly applicable to the
present case because the land in present reference case
was also an agricultural land at the time of acquisition,
therefore, the evaluation of the land shall be taken in to
consideration as an agricultural land. Hence, I am of the
opinion that the judgment produced by Ld. D.G.P. Mr.
P.N.Parmar of Referror Nos. 1 & 3 is a judgment same
village Umraj bearing L.A.R.No.1489/98(main) vide
Exh.92 is requires to be relied upon and followed. Hence,
the present Court rely upon the judgement of same
village-Umraj delivered in LAR No.1489/1998(main), a
copy of which is produced at Exh.92, wherein the then
Principal Sr. Civil Judge, Bharuch has awarded
Rs.87.60Ps. as an additional compensation Looking to the
nature of lands, the lands of Exh.92 and present lands
both are an agricultural land at the time of acquisition.
Hence, the claimants of present reference cases are
entitled to get Rs.87.60Ps. per sq.meter."
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7. While assessing the compensation, learned trial Court
taken the examplor of judgment rendered in other land
reference cases belonging to nearby village and taken the
basis of the said judgment to deliver the order in reference.
According to this Court, no error has been committed by
learned trial Court while taking up the example and to pass
award.
8. In addition to the aforesaid reasons, what could be more
necessary to decide is that one of the claimants has expired
and matter against him is abated as his heirs are not brought
on record. The judgment and award under challenge arises
from the common cause of action for all the claimants. It was
a single land acquisition case which given rise to the multiple
reference cases and ultimately multiple appeals. Since one of
the claimants has expired and his heirs are not brought on
record and appeal is accordingly abated, the judgment award
to that extent becomes final. In these circumstances, it is very
hard and difficult to split the impugned judgment and award
for other claimants. There cannot be two different awards for
the same cause of action. Recently, the Hon'ble Supreme
Court in the case of Suresh Chandra (Deceased) Through LRs.
& Ors. vs. Parasram & Others reported in 2025 LiveLaw
(SC) 728 takes the similar view after referring to Order 22
Rule 3, 4, 9 and 11 of the Code of Civil Procedure, 1908.
Relevant paras i.e. Paras:17, 18, 19, 20, 21, 22, 23, 24 and 25
read as under:
"17. Having regard to the aforesaid decisions, the law
governing determination of the issue as to whether
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abatement of an appeal on non-substitution of a deceased
party is partial or whole, can be summarized as under:
1. The answer to the question whether the entire appeal
abates or it abates partially qua the deceased party alone,
will depend on facts of each case and, therefore, no
exhaustive statement about the circumstances in which
the entire appeal would abate can be made.
2. As a matter of course courts will not proceed with
an appeal (a) when the success of the appeal may lead to
the court coming to a decision which is in conflict with the
decision between the appellant and the deceased
respondent which had become final with respect to the
same subject-matter between the appellant and the
deceased respondent; (b) when the appellant could not
have brought the action for the necessary relief against
those respondents alone who are still before the court;
and (c) when the decree against the surviving
respondents, if the appeal succeeds, be ineffective that is
to say, it would not be successfully executed.
3. In a case of "joint and indivisible decree" or "joint
and inseverable or inseparable decree", the abatement of
appeal in relation to one or more of the appellant(s) or
respondent(s) on account of failure to bring on record his
or their legal representatives in time would prove fatal to
the entire appeal because proceeding qua the surviving
party or parties may give rise to inconsistent or
contradictory decrees.
4. The question as to whether the decree is joint and
inseverable, or joint and severable or separable, must be
decided, for the purposes of abatement or dismissal of the
entire appeal, only with reference to the fact as to
whether the judgment/decree passed in the proceedings
vis-àvis the remaining parties would suffer the vice of
contradictory or inconsistent decrees.
5. 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 self-destructive and that the enforcement of one
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would negate or render impossible the enforcement of the
other which means that the two decrees are mutually
irreconcilable or totally inconsistent, that is, if laid side by
side, the only impression would be that one is in the teeth
of the other.
6. Where the plaintiffs or appellants have distinct,
separate and independent rights of their own i.e., not
inter-dependent upon the other, and for the 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 a
combination of several decrees in favour of one or the
other parties and not as a joint and inseverable decree.
7. Existence of a joint right as distinguished from
tenancy-in-common is not the criterion of a joint or
inseverable or inseparable decree. The joint character of
the decree will take colour from the nature of the decree
challenged.
ILLUSTRATIVE CASES WHERE ENTIRE APPEAL STOOD
ABATED ON NON- SUBSTITUTION OF A DECEASED
PARTY
18. Now, we shall examine those decisions where this
Court held appeal to have abated in its entirety on non-
substitution of legal representatives of one of the
deceased parties.
19. In Hemareddi (dead) through Legal
Representatives v. Ramchandra Yallappa Hosmani
reported in (2019) 6 SCC 756, one Govindareddi, the
propositus died, leaving behind two sons and a daughter.
The plaintiffs were children of one of the two sons. The
second defendant was the wife of the other son. The suit
properties were alleged to be the properties of the joint
family of Govindareddi and his sons. Suit was filed for
injunction as also for declaration that defendant no.1 is
not the adopted son. Trial court dismissed the suit and
upheld the adoption. Against which, an appeal was filed.
During the pendency of the appeal, one of the plaintiff-
appellants died. His LRs were not brought on record. The
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High Court took the view that the entire appeal abated.
The matter travelled to this Court. The question that fell
for consideration was whether the whole appeal abated,
or it abated qua the deceased appellant only. Upholding
the decision of the High Court, this Court reasoned thus:
"17. .......... The appeal having abated in regard to the
late brother, the decree of the trial court has become
final qua the deceased brother of the appellant. The
effect of the same is that the adoption is found legal.
The result of the appeal being allowed to proceed
further and succeed in the appeal would be the
passing of a decree by the High Court. The said
decree would be to the effect that the adoption is
invalid. The suit which was jointly filed by the
appellant and his late brother would have to be
decreed whereas the suit filed by the appellant and
his late brother stands dismissed by the trial court.
Both the decrees cannot stand together. There would
be irreconcilable conflict. The defendants are
common. They would be faced with two decrees
regarding the same subject matter which are
irrevocably conflicting."
20. In State of Punjab v. Nathu Ram reported in AIR
1962 SC 89 = 1961 SCC OnLine SC 137, the State
acquired on lease certain parcels of land belonging to
Labhu Ram and Nathu Ram for military purposes under
the Defence of India Act, 1939. Labhu Ram and Nathu
Ram, brothers, refused to accept the compensation
offered to them by the Collector and applied to the Punjab
Government through the Collector, under rule 6 of the
Punjab Land Acquisition (Defence of India) Rules, 1943.
The State Government referred the matter to an
arbitrator under rule 10, who, after inquiry, passed an
award ordering the payment of an amount higher than
what was offered by the Collector. The State Government
appealed against the award to the High Court of Punjab.
During the pendency of the appeal, Labhu Ram, one of
the respondents, died. The High Court held that the
appeal abated against Labhu Ram and that its effect was
that the appeal against Nathu Ram also abated. The State
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Government appealed to this Court. While dismissing the
appeal, this Court, inter alia, observed:
"9. ...... the award of the arbitrator in each of these
cases was a joint one, in favor of both the respondents
Labhu Ram and Nathu Ram. To illustrate the form of
the award, we may quote the award for the year 1945-
46 in the proceedings leading to Civil Appeal No.635
of 1957. It is:
"On the basis of the report of S Lal Singh, Naib
Tehsildar (Exhibit PW9/1) and Sheikh Aziz Din,
Tehsildar, (Exhibit PW9/2), the applicants are entitled
to sum of Rs. 4140 on account of rent, plus Rs.3872/
8/0 on account of income tax etc., due to the inclusion
of Rs. 6193/8/0 in their total income, plus such sum as
the petitioners have to pay to the Income Tax
Department on account of the inclusion of Rs. 4140 in
their income as awarded by this award."
The result of the abatement of the appeal against
Labhu Ram is therefore that his legal representatives
are entitled to get compensation on the basis of this
award even if they are to be paid separately on
calculating their rightful share in the land acquired,
for which this compensation is decreed. Such
calculation is foreign to the appeal between the State
of Punjab and Nathu Ram. The decree in the appeal
will have to determine not what Nathu Ram's share in
this compensation is, but what is the correct amount
of compensation with respect to the land acquired for
which this compensation has been awarded by the
arbitrator. The subject matter for which the
compensation is to be calculated is one and the same.
There cannot be different assessments of the amount
of compensation for the same parcel of land. The
appeal before the High Court was an appeal against a
decree jointly in favour of Labhu Ram and Nathu
Ram. The appeal against Nathu Ram alone cannot be
held to be properly constituted when the appeal
against Labhu Ram had abated. To get rid of the joint
decree, it was essential for the appellant, the State of
Punjab, to include both the joint decree holders in the
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appeal. In the absence of one joint-decree holder, the
appeal is not properly framed. It follows that the State
appeal against Nathu Ram alone cannot proceed."
While holding so, the argument on behalf of the
State that Labhu Ram had an equal share in the land
acquired and, therefore, the appeal against Nathu
Ram alone could deal with half the amount of the
award was rejected, reasoning thus:
"10. ...The mere record of specific shares in the
revenue records is no guarantee of their
correctness. The appellate court will have to
determine the share of Nathu Ram and necessarily
the share of Labhu Ram in the absence of his legal
representatives. This is not permissible in law.
Further, the entire case of Labhu Ram and Nathu
Ram, in their application to the Government for the
appointment of an arbitrator, was that the land
jointly belonged to them and had been acquired for
military purposes, that a certain amount had been
paid to them as compensation, that they received
that amount under protest and that they were
entitled to a larger amount mentioned in the
application and also for the income tax they would
have to pay on account of the compensation
received being added to their income. Their claim
was a joint claim based on the allegation that the
land belonged to them jointly. The award and the
joint decree are on this basis and the appellate
court cannot decide on the basis of the separate
shares."
The aforesaid observations make it clear that a
mere assertion that surviving party's own share could be
determined would not save the proceeding from
abatement on non- substitution of the legal
representatives of the deceased co-sharer if the pleadings
reflected a joint claim based on an allegation that the
subject matter of the suit belonged to them jointly.
21. In Venigalla Koteswarmma v. Madampati
Suryamba reported in (2021) 4 SCC 246, a suit was
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instituted, inter alia, for partition, separate possession of
plaintiff's one-fourth share and recovery of mesne profits
in respect of immovable properties described in Schedule
A and movable properties described in Schedule B of the
plaint. The plaintiff pleaded, inter alia, that plaintiff and
defendants 1 to 3 were siblings, born from the first wife of
the propositus; on death of his first wife, propositus
married another lady on whom suit properties vested
after the death of the propositus; however, the second
wife died intestate and issue less; as a result, the plaintiff
and defendants 1 to 3 became owners of the suit
properties, each having one-fourth share. The said suit
was instituted by impleading several other defendants
who had been intermeddling with the suit properties. In
the suit, the defendants 1 to 3 supported the plaintiff's
case. However, the other defendants contested the suit by
setting up their rights through the second wife of the
propositus either under an agreement or a Will, or other
instruments. The trial court discarded the Will and the
agreement and decreed the suit in part while excluding
certain properties. Against the trial court decree, two
separate appeals were filed. One by those who claimed
under the agreement; and the other by those who claimed
under the Will. During the pendency of the appeal,
defendant no.2 died, but no application was made for
substitution of his legal representatives. The High Court,
however, proceeded to decide the appeals on merit by
dismissing the appeal of those who claimed under the Will
and allowing the appeal of those who claimed under the
agreement. As a result, the property covered by the
agreement was excluded from partition. Against such
modification of the decree, the plaintiff filed an appeal by
special leave before this Court. In the appeal before this
Court, one of the points urged was that the whole appeal
before the High Court had abated due to non-substitution
of the legal representatives of deceased defendant no.2
and, therefore, the High Court's decree is liable to be set
aside. This Court accepted the submission and after
surveying several decisions including five-Judge Bench
decision of this Court in Sardar Amarjit Singh (supra)
observed:
"45.1. When we apply the principles aforesaid to the
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present case, it is not far to seek that the said appeal
by Defendants 16 to 18, after having abated against
Defendant 2 could not have been proceeded against
the surviving respondents i.e., the plaintiff and
Defendants 1 and 3. This is for the simple reason that
the trial court had specifically returned the findings
that the agreement Ext. B-10 was not valid and
Defendants 16 to 18 (appellants of AS No.1887 of
1988) derived no rights thereunder. The trial court
has also ordered that Defendants 13, 14 and 16 were
liable for mesne profits in respect of the immovable
properties in their possession belonging to
Annapurnamma till they deliver possession of those
items to plaintiff and defendants 1 to 3. Such findings
in relation to the invalidity of the agreement Ext. B-10
and consequential decree for partition, for delivery of
possession and for recovery of mesne profits attained
finality qua Defendant 2 Malempati Radha
Krishnamurthy; and his entitlement to one-fourth
share in the suit properties (including the property
covered by Ext. B-10) also became final when the
appeal filed by Defendant 16 to 18 abated qua him. If
at all the appeal was proceeded with and the alleged
agreement Ext. B-10 was upheld (which the High
Court has indeed done), inconsistent decrees were
bound to come in existence and have in fact come in
existence.
45.2. As noticed, the High Court has proceeded to
hold that Ext. B-10 agreement is valid and binding on
the plaintiff and Defendants 1 to 3. This part of decree
is in stark contrast, and is irreconcilable, with the
decree in favour of Defendant 2 which has attained
finality that the said agreement Ext. B-10 is neither
valid nor binding on Defendant 2. The High Court has
gone a step further to say that the plaintiff and
Defendants 1 to 3 were under obligation to execute
sale deed in favour of defendant 16 to 18. Though
making of such an observation in this suit, that heirs
of Annapurnamma were under obligation to execute a
sale deed in favor of defendant 6 to 18, remains
seriously questionable in itself but, in any event, this
observation could not have been made qua the
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deceased Defendant 2.
46. When the inconsistencies galore are writ large on
the face of the record, the inescapable conclusion is
that the appeal filed by Defendants 16 to 18 could not
have proceeded further afterits abatement against
Defendant 2 (Respondent 3)." (Emphasis supplied)
22. In Sunkara Lakhminarasamma vs. Sagi Subba
Raju and Others reported in (2019) 11 SCC 787, three
suits were instituted. Suits A and B were, inter alia, for:
(a) partition; (b) setting aside alienation; and (c) eviction
of certain defendants from some of the properties. Suit C
was for specific performance of an agreement to sell in
respect of one of the suit properties. Trial court dismissed
suits A and B, but partly decreed suit C to the extent of
one-third of the property. The first appellate court
affirmed the decree. Three second appeals were filed
before the High Court. Two second appeals arising from
suits A and B were dismissed whereas second appeal
arising from suit C was allowed and the suit for specific
performance was decreed fully in terms prayed for.
Before this Court, the contentions of appellants i.e.,
plaintiffs in suits A and B were that Wills relied by
defendants were not proved; moreover, those bequests
conferred no right, therefore, remaining defendants, who
claimed as transferees from the legatee, were liable to be
evicted. The respondents in the aforesaid case, refuted
those contentions and pleaded that the appeals were not
maintainable since a number of defendants (purchasers
from the legatee), were deleted from the array of parties,
and some of the defendants have died and their legal
representatives were not brought on record; as a result,
the decree passed in favour of such defendants had
attained finality. In other words, the validity of the Wills
as well as the sale deeds stood confirmed qua the
deceased/deleted defendants and, therefore, the appeals,
pending against other defendants, were liable to be
dismissed in view of the fact that if any order is passed
adverse to the interest of the remaining defendants (i.e.,
respondents in the appeal), it would be in conflict with the
judgment and decree which stood confirmed as against
the deceased/ deleted defendants. Accepting the aforesaid
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submissions of the respondents, a three-Judge Bench of
this Court held:
"13. In the matter on hand, the absence of certain
defendants who have been deleted from the array of
parties along with the absence of legal
representatives of a number of deceased defendants
will prevent the court from hearing the appeals as
against the other defendants. We say so because in
the event of these appeals being allowed as against
the remaining defendants, there would be two
contradictory decrees in the same suit in respect of
the same subject-matter. One decree would be in
favor of the defendants who are deleted or dead and
whose legal representatives have not been brought on
record; while the other decree would be against the
defendants who are still on record in respect of the
same subject matter. The subject matter in the suit is
the validity of the two Wills. The courts including the
Division Bench of the High Court have consistently
held that the two Wills are proved, and thus
Veeraswamy being the beneficiary under the two
Wills had become the absolute owner of the suit
properties in question. Such decree has attained
finality in favor of the defendants who are either
deleted or dead and whose legal representatives have
not been brought on record. In case these appeals are
allowed in respect of the other defendants, the decree
to be passed by this court in these appeals would
definitely conflict with the decree already passed in
favour of the other defendants.
14. As mentioned supra, the court cannot be called
upon to make two inconsistent decrees about the
same subject matter. In order to avoid conflicting
decrees, the court has no alternative but to dismiss
the appeals in their entirety.
15. In view of the above, the appeals fail not only on
the ground of non-maintainability, but also on merits,
and are dismissed." (Emphasis supplied)
23. In Budh Ram and Others vs. Bansi and Others
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reported in (2010) 11 SCC 476 plaintiffs instituted a suit
for declaration to the effect that they and proforma
defendant no.6 were co-owners and cosharers in joint
possession to a certain extent of the property in dispute.
They also prayed for permanent prohibitory injunction to
restrain the defendants 1 to 5 from ousting them.
Defendant no.6, namely, Smt Parwatu, did not enter
appearance in the suit. However, defendants 1 to 5, who
were appellants before this Court, contested the suit by
claiming title over the suit land through adverse
possession. The trial court decreed the suit in favour of
the plaintiffs and defendant no.6. Against the trial court
decree the defendants 1 to 5 preferred an appeal to the
High Court in which defendant no.6 was arrayed as one of
the respondents. However, during the pendency of
appeal, defendant no.6 died but no substitution was
brought within time. Later, when substitution application
was filed, it was dismissed for want of sufficient cause for
the delay. Consequent thereto, the High Court held that
as the trial court had passed a joint decree, the appeal
stood abated in toto. Challenging the order of the High
Court, appeal was laid before this Court. Affirming the
order of the High Court, this Court observed:
"19. In the instant case a declaratory decree was
passed in favor of the respondent plaintiffs and Smt
Parwatu to the effect that they were coowners,
though, they had specific shares but were held
entitled to be in joint possession. The appellant
applicants had sought relief against Smt Parwatu
before the first appellate court as there was a decree
in her favour, passed by the trial court where Smt
Parwatu had been impleaded by the appellant
applicants as pro forma respondent. In such a fact
situation, she had a right to contest the appeal. Once
a decree had been passed in her favor, a right had
vested in her favor. On her death on 19-11-2000, the
said vested right devolved upon her heirs. Thus, the
appeal against Smt. Parwatu stood abated. In the
instant case, the first appellate court rejected the
application for condonation of delay as well as the
substitution of LRs of Smt Parwatu, Respondent 4
therein.
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20. The only question remains as to whether the
appeal is abated in toto or only in respect of the share
of Smt Parwatu. The High Court has rightly reached
the conclusion that there was a possibility for the
appellate court to reverse the judgment of the trial
court and in such an eventuality, there could have
been two contradictory decrees, one in favor of Smt
Parwatu and the other, in favor of the present
appellants. The view taken by the High Court is in
consonance with the law laid down by this court
consistently. The facts of the case do not warrant any
further examination of the matter."
(Emphasis supplied)
24. In Pandit Sri Chand and Others vs. Jagdish
Parshad Kishan Chand and Others reported in AIR
1966 SC 1427 = 1966 SCC OnLine SC 206 five
persons stood sureties for satisfaction of the decree under
a common surety bond which recited that the five sureties
mortgaged the properties specified in the schedule
thereto and jointly and severally agreed that if any decree
was passed against X they shall comply with the same and
in default the amount payable under the decree subject to
a ceiling shall be realized from the properties mortgaged.
In the suit, decree was passed which was put to
execution. Sureties raised multiple objections to
execution of the decree against them. The execution court
rejected the objection and the appellate court (i.e., the
High Court) confirmed the order of the execution court.
The matter was appealed to this Court by three out of the
five sureties. During the pendency of the appeal here, one
of the appellants died. Application for bringing his LRs on
record being belated was dismissed for want of sufficient
cause for the delay. During hearing of the appeal, the
respondent counsel contended that the appeal had abated
in its entirety as the heirs had not been brought on record
and the ground on which the judgment of the High Court
proceeded was common to all the parties. Accepting the
submission of the respondent counsel, this Court held:
"6. ...The order of the High Court holding that the
sureties are liable to satisfy the claim notwithstanding
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the objections raised by Basant Lal has become final.
In the appeal filed by the appellants 1 and 3 if this
court holds that the High Court was in error in
deciding that the surety bond was not enforceable
because it was not registered, or that the first
respondent has done some act which has discharged
the sureties from liability under the bond, there would
unquestionably be inconsistent orders -- one passed
by the High Court holding that the surety bond was
enforceable, and the other, the view of this Court that
it is not enforceable.
xxx xxx xxx
9. When the decree in favor of the respondents is joint
and indivisible, the appeal against the respondents,
other than the deceased respondent cannot be
proceeded with if the appeal against the deceased
respondent has abated."
25. The underlying principle in the aforesaid decisions is
that in respect of the subject matter of a suit or a
proceeding arising therefrom, the court cannot pass
inconsistent decrees. In consequence, if, due to non-
substitution of LRs of a deceased party, the decree qua
the deceased party has attained finality by abatement of
proceedings qua him, the Court cannot proceed further if
a reversal or modification of the decree under appeal
would result in conflicting or inconsistent decrees.
Therefore, in such a situation, the appeal would abate in
its entirety."
9. The binding ratio thus applies to the facts of the present
case. Any reversal or modification in the impugned judgment
and award, therefore, would create position of conflicting and
inconsistent decree and in aforesaid situation, the appeal has
to be abated in its entirety.
10. In view of the above, all the appeals are abated. Interim
relief granted earlier, if any, shall stand vacated. Any amount
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lying with the Reference Court, shall be disbursed to the
claimants, after verifying genuinity of their claim and to verify
their share to obtain the same, after deducting the Court
Fees, if any. Records and Proceedings be sent back to the
concerned Reference Court, forthwith. Connected application,
if any, shall stand disposed of accordingly.
(J. C. DOSHI,J)
MISHRA AMIT V.
