Government of Andhra Pradesh Thr. Principal Secretary and others Vs. Pratap Karan and others [October 09, 2015]
2015 Latest Caselaw 684 SC

Government of Andhra Pradesh through Principal Secretary and others Vs. Pratap Karan and others

[Civil Appeal No.2963 of 2013]

Andhra Pradesh Industrial Infrastructure Corporation Ltd. Vs. Pratap Karan and others

[Civil Appeal No. 2964 of 2013]

M. Y. EQBAL, J.

1. This appeal being C.A.No.2963 of 2013 arises out of the judgment and order dated 19.12.2011 passed by the 3rd Judge of the High Court of Andhra Pradesh to whom the matter was referred to by the Chief Justice for final decision against the conflicting judgments passed by the two judges of the said High Court. The appeal was preferred by the plaintiff-respondent before the High Court which was heard by a Division Bench. The two judges of the Division Bench delivered two conflicting judgments, one by allowing the appeal and setting aside the judgment of the trial court and the other by dismissing the appeal and affirming the judgment of the trial court.

The 3rd Judge to whom the matter was referred, passed the impugned judgment upholding the judgment of one of the learned judges and allowing the appeal and decreeing the suit of the plaintiff-respondent. Another appeal being C.A.No.2964 of 2013 has been filed by the transferee of the suit property during the pendency of the appeal in the High Court. Since leave was granted, both the appeals have been heard and disposed of by this judgment.

2. The plaintiffs (hereinafter referred to as the respondents) filed Title Suit No. 274 of 2007 for rectification of Revenue Records by incorporating their names as owners and possessors in respect of the suit land comprised within Survey No.613 of Nadergul Village, Saroornagar Mandal, Rangareddy District, by deleting the duplicate Sy.No.119 in respect of portion of the land of the said Village.

3. The factual matrix of the case is that the contesting plaintiff- respondents filed the above suit stating that their predecessor in title late Raja Shivraj Dharmavanth Bahadur (hereinafter referred to as "late Raja") was the pattadar and absolute owner of the suit schedule property. The succession of the estate of late Raja was declared by a Royal Firman of the Nizam in favour of Raja Dhiraj Karan, late Raja Dharam Karan, late Raja Mehboob Karan and the heirs of Raja Manohar Raj vide Firman dated 4th Ramzan 1359 Hizri {Ex.A1).

On the death of late Raja issueless in the year 1917, the succession of his estate was granted by the Royal Firman in favour of the sons of his two brothers Raja Lokchan Chand and Raja Murali Manohar Bahadur by another Royal Firman dated 5th Safar 13 1361 Hizri, the succession of estate of late Raja Dhiraj Karan was granted in the name of Pratap Karan who is one of the plaintiffs, under Ex.A2. The other plaintiffs are the successors of legal heirs of Raja Dharam Karan, Raja Mehboob Karan and Raja Manohar Raj.

4. It has been contended on behalf of the plaintiff-Respondents that they are, therefore, the absolute owners and possessors of the suit schedule land. The land in Nadergul Village was subject matter of survey and settlement of the year 1326 Fasli (year 1917) and under the said survey and settlement the lands of late Raja were part of Khata No.1 wherein the suit schedule land was having Survey Number 579. Late Raja's name was also shown as Khatadar in Setwar and Vasul Baqui.

Thus, the suit lands are private lands of late Raja. The revisional survey of Nadergul Village was given effect in the year 1352 Fasli (year 1943) and the said survey has also confirmed the ownership of late Raja in Khata No.3 (Khata No.1 as per survey of 1326 Fasli (year 1917) which also made it clear that the suit lands are private lands of late Raja. The present survey number 613 was shown as the corresponding old Survey Number 579 without any change in the extent of the land.

5. The Respondent's further case is that the certified copy of Setwar and Vasul Baqui relating to Sy.No.613 for the year 1352 Fasli (year 1943) clearly disclose that late Raja was the Khatadar of all the land in Sy.No.613 of Nadergul Village, Saroornagar Mandal, Rangareddy District, Ex.A5. The village map of Nadergul Village and plan of S.No.613 clearly disclose the land as 'Kancha' of Late Raja.

The total survey numbers in the village are about 875. As per the village map and the corresponding land records ie., Setwar, Vasool Baqui, Touch Plan and Pahanies, the land within the boundaries of S.No.119 consists of an extent of Ac.1-20 guntas, which is in the name of Gaddam Mallaiah as Khatadar. However, as per the endorsement made in the Khasra Pahani (1954-55) there is a remark that the lands of late Raja are shown in separate series and in the Pahanies subsequent to the Khasra, S.No.613 is shown as Shivaraj Bahadur Ilaka without determining the extent.

6. It is the plaintiffs' case that as per the certified copies of pahanies for the years 1949-50 and 2000-01 the land in S.No.613 of Nadergul Village stood in the name of late Raja. However, it is alleged that in the Khasra Pahani, S.No.613 is rounded up, which does not convey any meaning. After 1954-55, Revenue Records are showing the land in S.No.119 with an extent of Ac.355-12 guntas and it is not known as to how the original extent of land in S.No.119 shown as Ac.1-20 has swollen to Ac.355-12 guntas with endorsement of "Sarkari" from the original endorsement of Gaddam Mallaiah, which clearly discloses duplication of the land in S.No.119 and to say the least, the Revenue Record has been tampered with by the custodians of the records with an oblique motive of depriving the legitimate owners of the land in S.No.613 of Nadergul Village.

Even today, pahanies, village maps, and touch plan clearly disclose the existence of S.No. 613 with a large chunk of land but purposefully the revenue authorities are not disclosing the details of the ownership of the suit land. The basic record ie., Setwar and Vasul Baqui Register of 1352 Fasli (year 1943). The endorsement in the Khasra Pahani of 1954-55 that the lands of late Raja in S.No.613 are being shown separately, is devoid of a sensible meaning. As per the endorsement, it is incumbent on the defendants to continue to maintain the revenue records in the name of late Raja and the plaintiffs being the predecessors in interest as pattadar/khatadar of the said land in S.No.613 of Nadergul Village.

7. The plaintiffs' case is that in certified copies of the pahanies for the years 1955-01, there is duplication of S.No.119, and while Gaddam Mallaiah is shown as Khatadar of S.No.119 in respect of land admeasuring Ac.1-20 guntas, the duplicated S.No. 119 admeasuring more than 355 acres and sometimes Ac.373-22 guntas is being shown as Kancha Sarkari notwithstanding the fact that in the Khasra Pahani for the year 1954-55 it is clearly mentioned late Raja as khatadar/pattadar of the entire land in S.No.119. Since the Khasra Pahani has confirmed the ownership of late Raja, the same cannot be changed as Sarkari Kancha in the Pahani without there being any proceedings.

When the land in S.No.613 is continuing to exist as per the village maps and touch plan, the pahanies and other records are being maintained with mis-description, by which title of the real owner will not vanish. The plaintiffs who are successors in interest of the land made attempts for correction of the entries in the Revenue Records under A.P. Record of Right in Land and Pattadar Pass Books Act, 1971 (for short "the Act") and the authorities rejected the claim for correction of entries on the ground that unless the plaintiffs get their title declared in a court of law, the mutation in the name of the plaintiffs cannot be effected under Section 8(2) of the Act. The defendants have no title over the suit schedule land.

8. The 5th defendant-appellant Mandal Revenue Officer, Saroornagar, while denying the suit claim, contended that the suit is not maintainable. According to him, the plaintiffs are neither owners nor possessors of the suit schedule property and they are in no way concerned with the suit land as per the Revenue Records. It has been pleaded on behalf of the defendants that the plaintiffs did not obtain succession certificate from the competent civil court and have not acquired the suit property of late Raja through succession as pleaded.

9. In the amended written statement, it has been pleaded by the defendant that Nadergul was a Jagir Village and as all the jagirs were abolished under the Hyderabad Abolition of Jagirs Regulation, all Jagir properties vested in the State and the Jagirdars became entitled only to receive compensation amount and the estate of late Raja also got merged with the State and all Jagirs in Hyderabad State were taken over by the Government and transferred to Deewani after publication of Notification No.8 dated 07-04-1949. Further Nazim Atiyat had passed an order dated 20-01-1958 in File No.1/56 Warangal/1950 and the legal heirs of Late Raja had participated in the said proceedings and staked claim for commutation amount in respect of the Jagir land.

Aggrieved by the said proceedings, some of the plaintiffs and certain other successors of late Raja had filed appeal before the Board of Revenue and the same was dismissed vide order dated 24.07.92 and a review petition was also dismissed by the Board of Revenue and, thereafter, the same persons had filed W.P.No.4999 of 1974 in the High Court and as per the judgment in the said writ petition, dated 22.04.76, the matter was remanded back to the Board of Revenue and after remand, the appeals filed by the above said persons were dismissed for non- prosecution.

10. It has been further pleaded in the aforesaid amended written statement that after abolition of Jagirs, the Jagir lands of late Raja numbering about 8 survey numbers were rounded off and separate numbers from 1 to 194 were given as evidenced in the Khasra Pahani for the year 1954-55 and as such the contention of the plaintiffs that original Sy.No.119 admeasuring Ac.1-20 guntas in the name of Gaddam Mallaiah has increased to 355 acres is not only false but the same is contrary to the record. Sy.No.119 admeasuring Ac.1-20 guntas is separate and distinct survey number from the Sy.No.119 which finds place in the Khasra Pahani in separate series of 1 to 194.

This Sy.No.119 is admeasuring Ac.355.00 and recorded as Sarkari Poramboke. Having not filed any declarations under the Land Ceiling Laws, the plaintiffs are not entitled to stake the suit claim. It is further pleaded by the defendant that the plaintiffs and their ancestors have participated in the enquiry before Nazim Atiyat for the award of commutation amount and hence they are estopped from filing the present suit, that too after lapse of about 5 decades.

11. The trial court, on consideration of evidence came to the conclusion that the plaintiffs have not made out a case for correction of Revenue Record and dismissed the suit. Aggrieved by the same, the plaintiffs filed the appeal before the High Court, which being allowed by one Judge and dismissed by another Judge, was heard by a third Judge, who after considering the law laid down by the High Court as well as this Court, held that the plaintiffs successfully demonstrated that late Raja was pattadar/khatadar of the land covered by S.No.613 admeasuring 373-22 guntas in the Khasra Pahani, the presumption backward/forward can be applied in his favour and in favour of his heirs that he or they continued to be the pattadar(s).

Allowing the appeal of the plaintiffs and setting aside the judgment and decree of the trial court, the learned third Judge of the High Court observed, thus: "Unless the State proves that the said land has been confiscated or vest in the State under Jagir Abolition Act on abolition of jagirs or for non filing of the declaration, the property vest in the Government under the provisions of Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings), 1973, mere mentioning "Sarkari" in subsequent pahanies or giving duplication S.No.119, title of the original owner will not vanish and it continues to be vest with them.

In Khasra Pahani for the year 1954-55 covered under Ex.12(a), when it is stated that S.No.613 has been recorded as "Self Cultivation Dastagardan" and numbers of the Sivaraj Bahadur has been written separately and the same has also been shown as S.No.119 under Ex.12(b). Therefore, late Raja or his heirs continue(s) to be pattadar(s) for the corresponding survey number and on changing also, but the same cannot become the government property as contended by the learned Advocate General. Further, the identity of land in S.No.613, suit land, as found in Ex.A-10-touch plan and Ex.A- 9-village map cannot undergo any change whatsoever and ownership may change from one person to the other but the location of land and its identity with reference to survey number cannot be changed.

Therefore, there is no further necessity for the plaintiffs to seek declaration of their title except to seek correction of record of rights recording the names of the heirs of late Raja i.e. the plaintiffs. Thus, the plaintiffs are entitled for a declaration for correction of the entries in the record of rights recording the names of the legal heirs of late Raja and also injunction restraining the defendants from interfering with the plaintiffs peaceful possession."

12. Aggrieved by the decision of the High Court, the defendants - appellants have preferred this appeal.

13. We have heard learned senior counsel appearing for the parties and also perused the written submissions filed by them.

14. While raising an additional ground for the first time here in this appeal, Mr. Mukul Rohatgi, learned Attorney General appearing for the appellants, submitted that the learned judges of the Division Bench who heard the appeal differed vertically in as much as Section 98(2) of CPC provides for confirmation of decree of the trial court. Reference to the 3rd Judge was made in the present case not after formulating any points of disagreement on the question of law, hence the reference by the Chief Justice to the learned 3rd Judge is ultra vires. In this connection learned counsel referred the decision of this Court in Tej Kumar vs. Kirpal Singh, (1995) 5 SCC 119.

It was further submitted that even if the provisions of Letters Patent Act are invoked the same cannot override the provisions of Section 98 CPC. In this connection learned counsel referred decisions in P.V. Hemalatha v. Kattamkandi Puthiya Maliackal Saheeda, (2002) 5 SCC 548 and Centre For Environmental Law v. Union of India, (2010)12 SCC 303. It was further contended that even if Clause 36 of the Letters Patent of the Madras High Court which has been adopted for the A.P. High Court is held applicable, nonetheless, in the present case, since no points of agreement have at all been formulated for consideration by the two learned judges who had heard the appeal, reference to the 3rd judge was, therefore, clearly incompetent.

15. Learned Attorney General appearing for the appellant raised another point with regard to abatement of the appeal pending before the High Court on the ground inter alia that one of the respondents i.e., Respondent No. 12 died on 21.12.2010 during the pendency of the appeal before the High Court. Since the prayer made in the suit is the one for declaration of title of the plaintiffs as a single entity the appeal pending in the High Court itself stands abated. Further, the appeal in the High Court got abated as a whole in as much as the decree that was challenged before the High Court was a joint and indivisible decree. In this connection the appellants relied upon the decision in the case of (2006) 6 SCC 569 and (2010) 11 SCC 476.

16. On merit of the appeal, the appellants first assailed the finding and the conclusion arrived at by the High Court that the area by name Bhagat Nadegul of Hyderabad District is different from Nadergul Village. According to the appellant there is absolutely no material to show that there is any other village by the name Nadergul in any part of the State. In this connection learned counsel referred the evidence of PW-1.

17. Further, the contention of the appellants is that the predecessors of the plaintiffs had sought for commutation in respect of land in Nadergul Village will show that the said lands were treated as Jagir land. The findings of the Atiyat Court qua Nadergul with the relevant Sandas have not been produced for verification. There is no finding anywhere in Exh. B.1 that Nadergul is not a Jagir Village. Merely because commutation amount was not awarded in respect of Nadergul Village, it shall not be treated as a private land. It was submitted that none of the plaintiffs entered the witness box and testified on any of the averments made in the plaint and the only person examined was PW-1 as General Power of Attorney holder of the plaintiffs who could not have any personal knowledge on the issues relating to the grant made by Nizam and the proceeding relating thereto.

18. On the relevancy of documentary evidence learned counsel contended that Sethwar (Exh.A-5), Register of Vasool Baqui and Khasra Pahani in respect of Survey No. 613 are not sufficient to declare title of Raja Shiv Bahadur and, thereafter, the plaintiffs as successors to the Estate in respect of the suit property. Learned counsel contended that it is inconceivable that fairly large extent of 373.22 acres of private land would otherwise not be subjected to any land revenue. According to the appellants since the land of Survey No.613 was a Crown's land it was not assessed to land revenue. With regard to Pahani Patrika from 1949-50 till 2000-01 shows that the land in survey No.613 as Kancha-Sarkari or Kancha- Shiv Raj Bahadur.

It was contended that there is no document whatsoever to support the case of the plaintiffs with regard to the title to the suit property. These documents cannot be treated as document of title of the plaintiffs.

19. Lastly, the submissions of the appellants is assuming that without admitting that there has been duplication of survey numbers is accepted that by itself cannot enable the plaintiffs to get a declaration of title unless there is prima facie evidence of title being acquired by their predecessors in interest. In any view of the matter the suit itself is barred by limitation.

20. Mr. Dushyant A. Dave, learned senior counsel appearing for the appellant Corporation in Civil Appeal No.2964 of 2013, also made his submission on behalf of the Corporation and contended that none of the plaintiffs have entered in the witness box and the only witness who was examined was the plaintiff's GPA holder whose evidence cannot be taken into consideration. Mr. Dave contended that the plaintiffs have kept quiet for more than 50 years and hence the suit claim is a chance litigation. It was further contended that the judgment of the 3rd learned Judge is opposed to Section 98(2) of the CPC and suggested that the matter will have to be remanded to the High Court.

21. Per contra, Dr. A.M. Singhvi, learned senior counsel appearing for the plaintiffs-respondents, at the very outset submitted that although A.P. Industrial Infrastructure Corporation Limited to whom the suit property was illegally transferred by the appellant-State during the pendency of appeal in High Court is neither a necessary party nor have got any right to prefer appeal against the impugned judgment passed by the High Court.

22. On the issue of application of Section 98(2) of CPC, Dr. Singhvi, learned senior counsel, submitted that A.P. High Court is governed by the Letters Patent of Madras High Court and, therefore, Section 98(2) of the Code has no application by reason of Section 98(3) of the Code. It is submitted that the decision of this Court relied upon by both the parties on this point itself clarify that Section 98(2) of the Code has no application to the High Court which is governed by Letters Patent. In this connection learned counsel also referred the decision of Patna High Court in AIR 1984 Patna 296 and AIR 1979 Patna 115. Learned counsel therefore submitted that there is no illegality in the reference made by the Chief Justice to the 3rd Judge of the High Court for deciding the appeal.

23. Rebutting the submission made by the appellants on the question of abatement learned counsel submitted that the present suit is for declaration of title and permanent injunction. On the death if Defendant No.12 the right to sue survives with the remaining plaintiffs and, therefore, that the appeal then pending in the High Court will not abate. Learned counsel referred Order 22 Rule 2 CPC and submitted that the objection with regard to abatement of appeal in the High Court was neither raised before the High Court nor raised in the grounds of memo of appeal filed before this Court.

24. Replying the submissions made by Mr. Dave, appearing for the appellant Corporation in another appeal, learned senior counsel appearing for the respondents submitted that a GPA holder can give evidence on matters which are within his knowledge and he is competent enough to give evidence on behalf of the party. In this connection he relied upon AIR 2005 SC 439.

25. Further submissions on behalf of the respective respondents have been made by Mr. Vikas Singh and Mr. Harin P. Raval, learned senior counsel, that since there is no dispute on the genuineness and authenticity of documentary evidence on record, the suit claim has to be decided on documentary evidence i.e. Exhs. A1-A-19. According to the learned senior counsel Exh. A-5(Sethwar), Exh. A-6(Vasool Baqui Record), Exh. A-12(Khasra Pahani) shows that the name of Shiv Raj Bahadur was recorded as the Pattadar of the suit land. From these documents it can be inferred without any doubt that ruler of the kingdom has accepted the ownership of Shiv Raj Bahadur and there is no need to have either Patta or title documents.

26. Referring to the admission in written statement filed by the defendant-appellants it was submitted that there are various other Pattadar in Nadergul Village. Further there is no pleading in the written statement that Shiv Raj Bahadur was a Jagirdar of the suit land. It was further contended that in the order passed in Nizam Atiyat proceeding it was declared that some villages are not Jagir lands. The declaration by Nizam Atiyat is for the whole village and not for some survey numbers in the Village. Admittedly, there are various other Pattadars in Nadergul Village and, therefore, in the Nizam Atiyat proceeding Nadergul was shown in List-3 as patta lands.

27. So far as the issue with regard to the suit, being barred by limitation it was submitted by the respondents that the suit for declaration of title and injunction falls under Article 65 of the Limitation Act 1963 where limitation is 12 years from the date when possession of the defendant become adverse to that of the plaintiff. There is no pleading in the written statement that the State has obtained title by adverse possession. In the present case the defendant-State has never set up and or cannot set up title by adverse possession, hence the suit cannot be held to be barred by limitation. There is no evidence adduced from the side of the defendants that the State ever came in possession. On the contrary the possession of the plaintiff-respondents was sufficiently proved by the trial court while deciding the injunction petition as also in the finding recorded by the High Court dismissing the appeal against the order of injunction.

28. We have heard learned senior counsel appearing for the parties at length and perused the record.

29. Before we decide the merit of the appeal, we shall take up the interlocutory applications filed by the appellant during the pendency of this appeal. By I.A. No.9/2015 filed on 20th July, 2015, the appellant stated that during the pendency of the appeal in the High Court, respondent No.12 died but the legal representatives have not been substituted by the respondents, who were appellants before the High Court which resulted in abatement of the said appeal. Hence, prayer has been made that non- substitution of legal representatives of respondent No.12 in the appeal pending in the High Court, the appeal stood abated by operation of law and consequently judgment and decree passed by the High Court in the appeal suit No.274 of 2007 is rendered nullity in law.

30. By another I.A. Nos. 10 and 11 of 2015, the appellant has stated that during pendency of this appeal respondent No.6 died on 8.4.2015 and respondent No.14 died on 6.1.2014 which were not within the knowledge of the appellant, hence prayer has been made to set aside the abatement and substitute their legal representatives.

31. Learned Attorney General appearing for the appellant pressed these two applications relying upon the decision of this Court in the case of Matindu Prakash (Deceased) by L.Rs. vs. Bachan Singh and others, AIR 1977 SC 2029; Amba Bai and others vs. Gopal and others, (2001) 5 SCC 570; Budh Ram and others vs. Bansi and others, (2010) Vol. 11 SCC 476.

32. In the case of Matindu Prakash (Deceased) by L.R.s vs. Bachan Singh and others, AIR 1977 SC 2029, when the appeal was pending in this Court, it revealed that two of the appellants died and no step was taken to bring the heirs and legal representatives of those appellants on the record. The question, therefore, that fell for consideration was whether appeal abated as a whole so as to entail a dismissal of the entire suit. This Court, therefore, remitted the matter back to the High Court to record a finding and to decide whether by virtue of the death, the appeal abated as a whole or the appeal had abated qua the deceased appellants before the Civil Appeal is disposed of.

33. In the case of Amba Bai and others vs. Gopal and others, 2001(5) SCC 570, this Court was considering the case where a suit for specific performance by one plaintiff against the defendant was finally allowed in appeal and the suit was decreed. During the pendency of Second Appeal by the defendant in the High Court, the plaintiff died and his legal representatives were brought on record. Subsequently, the defendant also died, but this fact was not brought to the notice of the Court and the appeal was dismissed. In those facts this Court considering the provision of Order 22 Rule 3 of the Code held that "in a case where the plaintiff or the defendant dies and the right to sue does not survive, and consequently the Second Appeal had abated and the decree attained finality inasmuch as there cannot be merger of the judgment or decree passed in Second Appeal with that passed in the First Appeal."

The said decision therefore, in our considered opinion will not apply in the present case. In the instant case, there are more plaintiffs than one and one of them died and the right to sue survives upon the surviving plaintiffs. In the said circumstances Order 22 Rule 2 of the Code will come into operation and the appeal will not abate.

34. In the case of Budh Ram and others vs. Bansi and others, (2010) Vol. 11 SCC 476, this Court after considering series of judgments rendered by this Court in the State of Punjab vs. Nathu Ram, (AIR 1962) SC 89, Sri Chand vs. Jagdish Pershad Kishan Chand, AIR 1966 SC 1427, Ramagya Prasad Gupta vs. Murli Prasad, (1973) 2 SCC 9 and Sardar Amarjit Singh Kalra vs. Pramod Gupta, (2003) 3 SCC 72 held as under:-

"17. Therefore, the law on the issue stands crystalLised to the effect that as to whether non-substitution of LRs of the respondent-defendants would abate the appeal in toto or only qua the deceased respondent-defendants, depends upon the facts and circumstances of an individual case. Where each one of the parties has an independent and distinct right of his own, not interdependent upon one or the other, nor the parties have conflicting interests inter se, the appeal may abate only qua the deceased respondent. However, in case, there is a possibility that the court may pass a decree contradictory to the decree in favour of the deceased party, the appeal would abate in toto for the simple reason that the appeal is a continuity of suit and the law does not permit two contradictory decrees on the same subject-matter in the same suit. Thus, whether the judgment/decree passed in the proceedings vis-à-vis remaining parties would suffer the vice of being a contradictory or inconsistent decree is the relevant test."

35. In the case of Harihar Singh vs. Balmiki Prasad Singh, AIR 1975 SC 733 = (1976) 1 SCC 212, this Court observed:

"32. The important point to note about this litigation is that each of the reversioners is entitled to his own specific share. He could have sued for his own share and got a decree for his share. That is why five Title Suits Nos. 53 and 61 of 1934 and 20, 29 and 41 of 1935 were filed in respect of the same estate. In the present case also the suit in the first instance was filed by the first and second plaintiffs for their one-twelfth share. Thereafter many of the other reversioners who were originally added as defendants were transposed as plaintiffs.

Though the decree of the trial court was one, three Appeals Nos. 326, 332 and 333 of 1948 were filed by three sets of parties. Therefore, if one of the plaintiffs dies and his legal representatives are not brought on record the suit or the appeal might abate as far as he is concerned but not as regards the other plaintiffs or the appellants. Furthermore, the principle that applies to this case is whether the estate of the deceased appellant or respondent is represented. This is not a case where no legal representative of Manmohini was on record."

36. Similarly, in the case of State of Punjab vs. Nathu Ram, AIR 1962 SC 89 = (1962) 2 SCR 636, which arose out of acquisition of land under the Defence of India Act, 1939, when the landowners refused to accept compensation offered by the Collector, the dispute was referred by the State Government to an arbitrator, who passed an award for payment of higher compensation. The State appealed against the award. During pendency of the appeal, one of the landowner namely Labhu Ram died. The High Court, holding that the appeal abated against Labhu Ram and its effect was that the appeal against another respondent also abated, the appeal was dismissed. When the matter came up to this Court, at the instance of the State Government, this Court deciding the issue held as under:

"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 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 co-respondents 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."

37. Five Judges Constitution Bench of this Court in the case of Sardar Amarjit Singh Kalra vs. Pramod Gupta, AIR 2003 SC 2588, was considering the question as to the effect of death of some of the appellants during the pendency of appeal. In that case, during the pendency of appeal, some of the appellants died on different dates and there was no attempt to take any step within time for bringing to the Court the legal representatives of the deceased appellants. The respondents, therefore, filed application praying for dismissal of those appeals as having been abated. It appears that during the pendency of appeal in the High Court, some of the appellants were said to have died, the plea of partial abatement of the appeals qua only those deceased appellants were not accepted by the High Court on the view that decree was joint based on common right and interest, the appeal was rejected in toto. On these facts, the Constitution Bench after discussing all earlier decisions held as under:-

"27. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. A careful reading of the provisions contained in Order 22 CPC as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination in an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order 22 are not to be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice."

xxxxx

32. But, in our view also, as to what those circumstances are to be, cannot be exhaustively enumerated and no hard-and-fast rule for invariable application can be devised. With the march and progress of law, the new horizons explored and modalities discerned and the fact that the procedural laws must be liberally construed to really serve as handmaid, make it workable and advance the ends of justice, technical objections which tend to be stumbling blocks to defeat and deny substantial and effective justice should be strictly viewed for being discouraged, except where the mandate of law inevitably necessitates it. Consequently, having regard to the nature of the proceedings under the Act and the purpose of reference proceedings and the appeal there from, the courts should adopt a liberal approach in the matter of condonation of the delay as well as the considerations which should weigh in adjudging the nature of the decree i.e. whether it is joint and inseverable or joint and severable or separable.

The fact that the Reference Court has chosen to pass a decree jointly in the matters before us is and should be no ground by itself to construe the decree to be joint and inseparable. At times, as in the cases on hand, the court for its convenience might have combined the claims for joint consideration on account of similar nature of the issues in all such cases and for that reason the parties should not be penalized, for no fault of theirs. Actus curiae neminem gravabit (an act of court shall prejudice no one) is the maxim of law, which comes into play in such situations.

A number of people, more for the sake of convenience, may be counselled to join together to ventilate, all their separate but similar nature of claims and this also should not result in the claims of all such others being rejected merely because one or the other of such claims by one or more of the parties abated on account of death and consequent omission to bring on record the legal heirs of the deceased party. At times, one or the other parties on either side in a litigation involving several claims or more than one, pertaining to their individual rights may settle among themselves the dispute to the extent their share or proportion of rights is concerned and may drop out of contest, bringing even the proceedings to a conclusion so far as they are concerned. If all such moves are allowed to boomerang adversely on the rights of the remaining parties even to contest and have their claims adjudicated on merits, it would be a travesty of administration of justice itself.

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35. In the light of the above discussion, we hold:

(1) Wherever the plaintiffs or appellants or petitioners are found to have distinct, separate and independent rights of their own 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 the combination of several decrees in favour of 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 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-à-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 self-destructive and that the enforcement of one would negate or render impossible the enforcement of the other.

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37. For all the reasons stated above, we are unable to approve the decision or the manner of disposal given by the High Court in these cases, which resulted in grave injustice to the remaining appellants in denying them of their right to have an adjudication of their claims on merits. The High Court ought to have condoned the delay as prayed for, keeping in view the pendency of the main appeals on its file, adopting a liberal and reasonable approach, which would have facilitated an effective adjudication of the rights of parties on either side, avoiding summary rejection of the appeals in entirety. The judgment and decrees passed by the High Court in all these appeals are set aside and appeals are remitted to the High Court to be restored to their original files for being disposed of afresh on merits of the claims of both parties and in accordance with law. These appeals are allowed on the above terms, with no order as to costs."

38. In the instant case, the plaintiffs joined together and filed the suit for rectification of the revenue record by incorporating their names as the owners and possessors in respect of the suit land on the ground inter alia that after the death of their predecessor-in-title, who was admittedly the Pattadar and Khatadar, the plaintiffs succeeded the estate as sharers being the sons of Khatadar. Indisputably, therefore, all the plaintiffs had equal shares in the suit property left by their predecessors. Hence, in the event of death of any of the plaintiffs, the estate is fully and substantially represented by the other sharers as owners of the suit property. We are, therefore, of the view that by reason of non-substitution of the legal representative(s) of the deceased plaintiffs, who died during the pendency of the appeal in the High Court, entire appeal shall not stand abated. Remaining sharers, having definite shares in the estate of the deceased, shall be entitled to proceed with the appeal without the appeal having been abated. We, therefore, do not find any reason to agree with the submission made by the learned counsel appearing for the appellants.

39. By filing another I.A. No.7 of 2015 on 17.4.2015, the appellants sought permission to urge additional grounds as contemplated under Section 98 of the Code of Civil Procedure . Admittedly, this ground was not urged before the learned third Judge of the High Court at the time of hearing of the appeal. Be that as it may, we allow the appellant to urge additional ground in this appeal.

40. By urging this additional ground learned senior counsel for the appellants submitted that the procedure adopted by the High Court in the disposal of the appeal is not in consonance with the provisions contained in Section 98 of the CPC. Learned counsel submitted that the appeal in the High Court was originally heard by two judges who differed in their opinion and wrote two separate judgments. While giving judgments, both the judges have not recorded their opinion on the point of difference on the point of law.

Without formulating the point of difference the matter was referred to a third judge by the Chief Justice and the third judge finally passed the impugned judgment concurring with one of the judge. According to the learned counsel, therefore, the impugned judgment is vitiated in law and cannot be sustained. In this connection, learned counsel relied upon the decision of this Court in Tej Kaur and Another vs. Kirpal Singh and Another, (1995) 5 SCC119; P.V. Hemalatha vs. Kattamkandi Puthiya Maliackal Saheeda and Another, (2002) 5 SCC 548; Pankajakshi (Dead) Through Lrs. And Others vs. Chandrika and Others, (2010) 13 SCC 303.

41. Section 98 of the Code of Civil Procedure reads as under :-

"98. Decision where appeal heard by two or more Judges.

(1) Where an appeal is heard by a Bench of two or more Judges, the appeal shall be decided in accordance with the opinion of such Judges or of the majority (if any) of such Judges.

(2) Where there is no such majority which concurs in a judgment varying or reversing the decree appealed from, such decree shall be confirmed: Provided that where the Bench hearing the appeal is composed of two or other even number of Judges belonging to a Court consisting of more Judges than those constituting the Bench and the Judges composing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges, and such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the appeal including those who first heard it. (3) Nothing in this Section shall be deemed to alter or otherwise affect any provision of the letters patent of any High Court."

42. From the legislative history of enactment of Code of Civil Procedure , it would appear that Section 98 of the CPC was for the first time enacted in 1861 by the Act amending the Civil Procedure Code of 1859. Subsequently in 1862, Letters Patents were issued establishing the High Court of Madras and these Letters Patents were modified in 1865. Clause 36 of the Letters Patent declared that in exercise of appellate jurisdiction the certain procedure is to be adopted. In 1877 and 1882 amendments were brought in the Code of Civil Procedure but no provision was made to the effect that the Code shall not affect the Letters Patent. Thereafter many High Courts and the Privy Council interpreted the provisions of Section 98 and Clause 36 of the Letters Patent and it was consistently held by the Full Bench of the Madras High Court as under:-

"The result is that it is now beyond all doubt that Clause 36 of the Letters Patent applies to all appeals. It may be asked, when does Section 98 of the Civil Procedure Code have any operation and why should the legislature not say that the section does not apply to Chartered High Courts instead of adding an explanation to the section?

The reply is that Section 98 applies now only to Courts other than the Chartered High Courts, that is, the Chief Courts and Courts of judicial Commissioners and the reason why the legislature adopted this particular form of elucidating the matter is that it was intended to retain Section 98 as applicable even to Chartered High Courts but to make the application subject to Clause 36 of the Letters Patent. If, at any time, Clause 36 of the Letters Patent ceases to exist, Section 98 will come into operation. It is to attain this particular result that the explanation was added to Section 98 instead of saying that Section 98 does not apply to Chartered High Courts at all. I would answer the question referred to us thus:"

43. Clause 36 of Amended Letters Patent of the High Court of Madras, which has been made applicable to the High Court of Andhra Pradesh, reads as under:-

"36. Single Judge and Division Courts:-- And we do hereby declare that any function which is hereby directed to be performed by the said High Court of Judicature at Madras, in the exercise of its original or appellate jurisdiction, may be performed by any Judge, or by any Division Court thereof, appointed or constituted for such purpose in pursuance of Section 108 of the Government of India Act, 1915 and in such Division Court is composed of two or more Judges, and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there shall be a majority, but if the Judges should be equally divided they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it."

44. Learned senior counsel appearing for the respondents in response to the argument on Section 98 of the CPC, submitted that in view of Sub- section (3) of Section 98, the provision of Section 98 of the Code will not apply. Ld. senior counsel submitted that this Court cannot go into that question for the reason that the appellants neither raised this point before the third judge who passed the impugned judgment nor the appellants have been granted permission to raise the question of application of Section 98 of the CPC. According to the learned counsel having regard to the procedure provided under the Letters Patent of the High Court, the objection cannot be entertained.

45. Firstly, we shall discuss the decisions cited by the learned counsel on both sides. In the case of Tej Kaur and another (supra), a Division Bench of this Court has considered the provisions of Section 98 of CPC. The Attorney General put reliance on paragraphs 3, 6 and 9 of judgment whereas Dr. Singhvi relied on paragraphs 8 and 9 of the judgment. Hence we extract paras 3, 6, 8 and 9 of judgment which are as under:-

"3. The question, therefore, is whether the finding of the court below that the will has not been proved is a finding of fact? If so, whether in the absence of majority opinion of the Division Bench, the confirmation of the decree of civil court is valid in law? Thirdly, whether this Court can examine the case on merits to find whether the will is validly proved, in which event would sub-section (2) of Section 98 be not rendered otiose or ineffective?

6. In other words, the difference of opinion between Judges, who constitute the Bench hearing the appeal, on a point of law alone would be referred to a third or other Judges according to the rules of that High Court. By implication, on question of fact, when there is no majority opinion varying or reversing the decree appealed from, such decree should be confirmed.

8. The ratio in Jayanti Devi v. Chand Mal Agrawa which has been referred by Shri Bagga, is inapplicable to the point in issue. Therein, because of what has been provided in sub-section (3) of Section 98 CPC, the letter patent power was taken aid of and it was held that the letter patent court was not confined to the hearing of the appeal by the third Judge on the question of law only, on which the Judges hearing the appeal had differed. Such a difference of opinion could be on a question of fact as well. It could, thus, be seen that the reference there was under the letters patent which power has been expressly preserved by sub-section (3) of Section 98. But in the case at hand, the letters patent power was not available and therefore, by operation of sub-section (2) of Section 98, the decree of the court below stands affirmed.

9. The question then is whether this Court could nullify the scheme of Section 98(2) by examining the dispute on merits and by implication render sub-section (2) surplusage or otiose. In our considered view the contention of the appellant cannot be accepted. It is true that in a case where there is difference of opinion among the Judges of the High Court, the power of this Court under Article 136 is wide enough to test the correctness of the conclusion reached by the differing learned Judges as pointed out by this Court in Dr Prem Chand Tandon case.

This proposition is unexceptionable but this Court had no occasion in that case to consider the scope of sub- section (2) of Section 98. The language employed in sub-section (2) is imperative and in mandatory terms. The object appears to be that on a question of fact when there is a difference of opinion, the view expressed by the court below, in the absence of a majority opinion, needs to be given primacy and confirmed. When such is the animation, this Court cannot enlarge the scope of the controversy by itself examining the correctness of the finding of fact and decide which view of the two is correct. This would be in direct negation of the legislative mandate expressed in sub-section (2) of Section 98 of the CPC."

46. From perusal of the above quoted paragraphs in the decision given in Tej Kaur (supra) it is manifest that this Court considered the procedure to be adopted as contemplated under Section 98 of the Code and held that for those courts, the procedure of which is governed by Letters Patent, the power has been expressly reserved by Sub section (3) of Section 98. Hence, in the instant case the procedure provided in the Letters Patent of the High Court shall prevail.

47. Reference has also been made to the case of P.V. Hemalatha (supra) where the judges in appeal constituting a Division Bench pronounced two separate judgments wherein they differed in almost all the issues arising in the case. A point was raised that since the judges comprising the Division bench delivered two separate judgments and have not identified the difference on any point of law, the decree of the court below is liable to be confirmed in terms of Section 98(2) of the Code. This Court held that in such cases the procedure is to be adopted as contemplated under Section 98 of the Code having regard to the fact that the provisions of Clause 36 of Letters Patent of the Madras High Court is not applicable.

This Court held:-

"17. Admittedly, the High Court of Kerala is a newly constituted court for the newly formed State of Kerala in 1956 and governed by the Kerala Act. The said High Court does not have any Letters Patent - it being not a Chartered High Court continuing from the British period. In such a situation, it is submitted that the learned Judges were perfectly justified in giving effect to the provision of sub-section (2) of Section 98 of the Code and coming to the conclusion that because of the two different judgments passed by them the decree of the subordinate court was liable to be confirmed.

On behalf of the respondent very strong reliance has been placed on a two-Judge Bench decision of this Court in the case of Tej Kaur v. Kirpal Singh in which in a similar situation the Supreme Court held that the provision of sub-section (2) of Section 98 would be attracted and in view of the two conflicting judgments passed by two Judges who differed on issues of fact, the judgment of the subordinate court is liable to be confirmed. 35. We have reached the conclusion as stated above that clause 36 of the Letters Patent of the Madras High Court on "practice and procedure" and "powers of Judges" is not applicable to any part of the new territory of the State of Kerala and to the new High Court of that State.

Law with regard to the "practice, procedure and powers of Judges" as contained in the Kerala Act, would be applicable uniformly to all the territories now forming part of the new State of Kerala and the High Court established for it. We have also held even on assumption that Section 23 of the Travancore- Cochin Act is saved under Section 9 of the Kerala Act that since the said Kerala Act is a "general law", it has to give place to Section 98 of the Code of Civil Procedure which is a "special law" applicable to civil appeals arising from civil suits."

48. In the case of Pankajakshi (Dead) Through Lrs. and Others (supra), this Court followed the earlier two decisions in Tej Kaur and P.V. Hemalatha since the practice and procedure of Letters Patent was not applicable.

49. A comparative study of Section 98 CPC vis-à-vis clause 36 of the Amended Letters Patent of the Andhra Pradesh High Court will reveal that while Section 98 provides that in a case where the Judges comprising the Bench differ in opinion on point of law, they may state the point of law upon which they differ and the appeal shall be heard upon that point only by one or more of the other Judges, such point shall be decided according to the opinion of the majority of the Judges.

Whereas Clause 36 of the amended Letters Patent provides that in a case the Division Court exercising its original or appellate jurisdiction hears the appeal and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of majority of Judges. If the Judges are equally divided they shall state the point upon which they differ and the case shall then be heard on that point by one or more of the Judges and the point shall be decided according to the opinion of majority of Judges who have heard the case including those who first heard it.

50. Section 98(3) of the Code was added in 1928 by the repealing amending Act (18 of 1928). The amended Sub-section (3) of Section 98 was considered by a Full Bench of the Madras High Court in Dhanaraju vs. Motilal Daga and Another, AIR 1929 (Mad.) 641 (F.B.). The Division Bench of the High Court of Patna in the case of Bokaro and Ramgur Ltd. vs. State of Bihar, AIR 1966 (Patna) 154, considered the similar question and observed:-

"The view which I have expressed above is supported by a Full Bench decision of the Madras High Court reported in Dhanaraju v. Bala-kissendas Motilal : AIR 1929 Mad 641 FB) : ILR Mad 563, and by two decisions of this Court; one reported in Debi Prasad Pandey v. Gaudham Rai : AIR 1933 Pat 67 at p. 69 : ILR Pat 772 and the other in Rajnarain v. Saligram ILR Pat 332. Clause 28 governs not merely Clause 10, but also Clause 11 of the Letters Patent which ordains that this Court is a Court of Appeal from the Civil Courts of the State of Bihar. Clause 28 of the Letters Patent being wider in scope than section 98 of the Code of Civil Procedure , because it covers points of fact as well as points of law, a reference to a third Judge in the present appeal is not incompetent merely because there has been no difference of opinion between Sinha and S. N. P. Singh, JJ. on a point of law.

The cases relied upon by the learned Advocate General were decided before the insertion of Sub-section (3) in Section 98 of the Code and they have become obsolete. I am, therefore, of the opinion that the point raised by the learned Advocate General is without merit and must be overruled, and I must deal with this appeal as one referred to me under Clause 28 of the Letters Patent. I must, however, indicate that I ought to deal with only such point or points in this appeal upon which there has been a difference of opinion between Sinha and S. N. P. Singh, JJ.

This is clear not only from the terms of Clause 28, but also from the decision of this Court in Zainuddin Hussain v. Sohan Lal. In that case, Rai, J. indicated that it is not open to a third Judge to adjudicate upon a point on which there is no difference of opinion between the two Judges who heard the appeal in the first instance. Similar view was taken by a special Bench of the Allahabad High Court in Akbari Begam v. Rahmat Husain: AIR 1933 All 861 SB : ILR All 39."

51. A similar question with regard to the interpretation of Section 98 CPC and the Patna High Court Rules came for consideration before the Patna High Court in the case of Smt. Jayanti Devi vs. Srichand Mal Agrawal and Ors. AIR 1984 Patna 296. Noticing the provision of High Court Rules, the Court came to the conclusion that the Letters Patent of the Court has not confined the hearing of the appeal by a third Judge on the questions of law only upon which the Judges hearing the appeal differ. Such a difference of opinion can be on question of facts also.

The High Court is also of the view that there is no imperative prescription that the difference of opinion has to be formulated by a joint order. If such difference or differences is expressly enumerated in a joint order it may serve better. Still absence of such joint order will not vitiate the reference. The Court observed:-

"It may be seen that the Letter Patent of the Court has not confined the hearing of the appeal by a 3rd Judge on, the questions of law upon which the Judges hearing the appeal differ. Such a difference of opinion can be on a question of fact also. That the Judges should record expressly in a joint order what their differences are may be desirable. But there is no imperative prescription that the difference of opinion has to be formulated by a joint order.

If such difference or differences is expressly enumerated in a joint order, it may serve better and the 3rd Judge hearing the appeal may not be required to investigate into their respective judgments to discover the difference or differences of opinion. Still absence of a joint order specifying the difference as envisaged under the proviso to Sub- section (2) of Section 98 of the Code cannot be taken, to vitiate the reference or the hearing of the appeal by a third Judge.

This view is supported by a judgment by Lalit Mohan Sharma, J. in Rulia Devi v. Raghunath Prasad, I am in respectful and complete agreement with the views expressed in Rulia's case and find no substance in the preliminary objection of Mr. Chatterjee in this regard. Mr. Chatterjee's further contention that there being no majority, and the reference being invalid, the judgment and decree of the court below should be deemed to be confirmed, is also devoid of say merit. Any majority that may conclude the judgment can be noticed only after the disposal of the appeal by the third Judge and not before that. Such a conclusion can be arrived at only if any views do not agree with the views of the Hon'ble Judge taking the view that the judgment and decree should be reversed. The preliminary objection is accordingly disposed of."

52. In the case of Reliance Industries Ltd. vs. Pravinbhai Jasbhai Patel, 1997(7) SCC 300, the provision of Section 98 came for consideration before this Court as to the applicability of the Section in the matter of reference to a third judge, the Court held:- "11. As laid down by Section 4 sub-section (1) CPC itself in the absence of any specific provision to the contrary, nothing in the Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.

It cannot be disputed that Letters Patent as applicable to the High Court of Gujarat is a special law in force which confers special jurisdiction or power and lays down special form of procedure prescribed therein for governing the cases where the two learned Judges forming the Division Bench of the High Court differed on a question of law or fact. Under such circumstances clause 36 of the Letters Patent laying down the special procedure for meeting such a contingency was required to be followed without in any way being impeded or restricted or being cut across by the procedural requirements laid down by Order 47 Rule 6 CPC.

The said provision on its own would apply to those courts which were governed strictly by the procedure of Code of Civil Procedure and had no provision of Letters Patent Charter to fall back upon. In other words chartered High Courts governed by the Letters Patent which were original chartered High Courts or which were the successor High Courts like the Gujarat High Court, would be governed by the special procedure laid down by clause 36 of the Letters Patent and that would remain saved by the operation of Section 4 sub-section (1) CPC noted above. It is, therefore, not possible to agree with the reasoning of the High Court in the impugned judgment to the effect that clause 36 of the Letters Patent does not deal with a situation where there is conflict of decisions between the two learned Judges of the Bench sitting in review against the earlier judgment of the Division Bench of the High Court.

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Moreover the fact remains that by the enactment of Section 98(3) CPC whatever doubt earlier remained in connection with this controversy was put at rest by the legislature and the view propounded by the Privy Council got statutory recognition by the amendment of Section 98 and the insertion of sub-section (3) thereof."

53. In the case of Rulia Devi and others vs. Raghunath Prasad, AIR 1979 Patna 115, a Bench of the Patna High Court while considering th