Jammu & Kashmir High Court – Srinagar Bench
Gulam Ahmad Raina & Anr vs Mst. Hameeda Akhtar & Ors on 24 July, 2026
Author: Sanjay Dhar
Bench: Sanjay Dhar
HIGH COURT OF JAMMU &KASHMIR AND LADAKH AT
SRINAGAR
Reserved on: 14.07.2026
Pronounced on: 24.07.2026
Uploaded on: 24.07.2026
Whether the operative part or full
judgment is pronounced: Full
RSA No.12/2021
c/w
RSA No.11/2021
GULAM AHMAD RAINA & ANR. ...APPELLANTS
Through: - Mr. Sheikh Hilal, Advocate, with
Ms. Shaziya Kamal, Advocate.
Vs.
MST. HAMEEDA AKHTAR & ORS. ...RESPONDENT(S)
Through: - Mr. Altaf Haqani, Sr. Advocate, with
Mr. Asif, Advocate.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) Through the medium of present judgment, the afore-
title two Civil Second Appeals filed by the appellants against
two separate judgments dated 19.05.2021passed by the
learned Additional District Judge, Budgam (hereinafter “the
1st Appellate Court”), whereby appeals against common
judgment and decree dated 31.05.2016 passed by the
learned Sub Judge, Chadoora (hereinafter “the trial court”)
in two different suits filed by the appellants, have been
dismissed.
RSA No.12/2021 c/w RSA No.11/2021 Page 1 of 22 2) The facts relevant for deciding the present appeals are that suit No.205/N came to be filed by the
appellants/plaintiffs before the trial court against the
respondents/their predecessor-in-interest (defendants),
seeking a declaration that they are owners in possession of
land measuring 06 kanals 08 marlas in Khasra No.528
situated at Hassipora, Chadoora, and that the deed of
confirmation regarding half of the aforesaid land executed by
defendant No.8-Ghulam Mohd. Raina in favour of defendant
No.1-Hamida Akther and defendant No.2-Mehmooda on
20.02.1995 registered by Sub-Registrar on 01.03.1995, be
declared as null and void and not binding upon the plaintiffs,
with a consequential relief of injunction against the
defendants.
3) Suit No.54/N was filed by the plaintiffs seeking a
declaration that they are in exclusive ownership and
possession of land measuring 23 marlas in Khasra
No.963/443 and 951/443, situated at village Hassipora
Chadoora, with a consequential relief of injunction. In this
suit, only Gh. Mohammad Raina, Hameeda Raina and
Mehmooda Raina were impleaded as defendants, whereas in
the earlier suit, there were as many as eight defendants.
4) The two suits were consolidated by the learned trial
court and during trial of the case, the parties arrived at a
RSA No.12/2021
c/w RSA No.11/2021 Page 2 of 22
settlement, whereby they agreed for appointment of
Commissioner with power to make local inspection of the
properties including the suit properties, which had devolved
upon them through their ancestors as also the properties
which had been acquired by them from their collaterals.
Accordingly, the learned trial court appointed two
Commissioners, namely, Shri Rashid Ahmad Lone (former
District and Sessions Judge) and Shri Abdul Rashid Hanjura
(Advocate), as Commissioners for the purpose as indicated
in the compromise application. Naib Tehsildar, Chadoora,
was directed to provide assistance to the Commissioners for
the purpose of identification, measurement and entitlement
of the parties in respect of entire property. The
Commissioners were directed to submit their report. The
parties undertook that the report of the Commissioners shall
be binding upon them.
5) It seems that the Commissioners, after undertaking
inspection of the entire property that had devolved upon the
parties from their ancestors, submitted their report on
13.06.2013. The plaintiffs, however, did not accept the
report of the Commissioners and they filed their objections
to the same. On the directions of the Court, the matter was
sent for re-consideration to the Commissioners. Another
report came to be filed by the Commissioners on 04.08.2014.
RSA No.12/2021
c/w RSA No.11/2021 Page 3 of 22
However, the plaintiffs/appellants again filed their
objections to the said report. The learned trial court recorded
the statements of the Commissioners.
6) After taking into consideration the pleadings, the
reports filed by the Commissioners, the objections/counter-
objections filed by the parties to the reports of the
Commissioners and the statements made by the
Commissioners before the trial court, the learned trial court
passed a common judgment dated 31.05.2016. The relevant
findings recorded by the learned trial court are reproduced
as under:
“Although commissioners reports have been
objected by the plaintiffs but after minutely
scrutinizing the commissioners reports as well
as the record which has been annexed with the
commissioners reports, I am of the opinion that
commissioner reports has left no stone
unturned in clarifying the doubts/objections
raised by the plaintiffs. Be that as it may,
although in the basic suits, suit property only
pertains to survey No.528-min, Survey No.
963/443 and Survey No. 951/443 but
compromise filed by the parties to the suit is
having a wider scope to bring within its purview
the whole landed estate that once upon a time
belonged to the common hereditary ascendant
of the parties to the suit namely Fazal Raina
father of Abli and Abdi Raina all dead by getting
represented by third and fourth generation of
Fazal Raina i.e, parties to the suit.
Since in the present case parties have
crystallized their rights regarding their
inheritance pertaining to the estate of their
common ancestor namely Fazal Raina by way of
compromise and since none of the parties to theRSA No.12/2021
c/w RSA No.11/2021 Page 4 of 22
suit does retracts from their compromise on
record referred to the commissioners for
settlement, this court has no option but to pass
a decree of declaration that whatever landed
estate had been left by Quda Raina son of Abdi
Raina son of Fazal Raina along with two-third
landed estate of Aziz Raina son of Abli Raina son
of Fazal Raina shall vest in the plaintiffs through
Rahim & Rehman both sons of Aziz Raina and
defendant No. 1 Hamida and defendant No.2
Mehmooda both daughters of Gh. Mohd. Raina
and defendant No.8 Gh. Mohd. Raina shall be
the owner possessor and title holder of whole
landed estate of Ahad Raina son of Abli son of
Fazal Raina along with one-third share from the
landed estate of Aziz Raina son of Abli Raina son
of Fazal Raina. With a clarification that all that
has been disposed off during his lifetime in
different manners of disposition, alienation and
conveyance by Quda Raina son of Abdi Raina
son of Fazal Raina shall not be accounted for
entitlement to the plaintiffs. Similarly if Ahad So
Abli son of Fazal Raina has transferred any of the
properties during his lifetime shall not be
accounted for the entitlement of the
defendants. With further clarification that if Aziz
father of defendant Dr. Gh. Mohd. Raina and
grandfather of plaintiffs has transferred during
his lifetime any of the properties out of his
holdings same shall not be considered for the
entitlement of the parties. Concerned officials
are directed to ensure that declaration above
mentioned is implemented in its letter and spirit
in terms of commissioners’ report read with
detailed report furnished by revenue officials
who assisted the commissioners in preparing
the report. With a further direction to both the
parties that party found in excess shall
surrender the same unto and in favour of party
holding the less. Decree sheet shall be prepared
accordingly. Both the suits are disposed off. File
shall be consigned to records after its due
compilation.”
7) The aforesaid common judgment and decree passed by
the learned trial court was challenged by the plaintiffs/
appellants before the learned 1st Appellate Court by filing two
RSA No.12/2021
c/w RSA No.11/2021 Page 5 of 22
separate appeals. Both the appeals came to be dismissed
vide two separate judgments passed on 19.05.2021. The
appellants thereafter have challenged the judgments and
decrees passed by the courts below by filing instant two
separate civil second appeals, which are subject matter of
the present judgment. The two appeals, however, came to be
dismissed for non-prosecution in terms of dated 13.10.2023.
8) Vide CM No.7027/2023, appellant No.1, Gulam Ahmad
Raina, sought restoration of RSA No.11/2021 and vide CM
No.7027/2023, he sought restoration of RSA No.12/2021.
The restoration of the appeals was sought by appellant No.1
only, without being joined by the legal heirs of deceased
appellant No.2, who had passed away prior to dismissal of
the appeals. RSA No.11/2021 came to be restored in terms
of order dated 17.02.2025 whereas RSA No.12/2021 came
to be restored by this Court in terms of order dated
12.02.2025.
9) The respondents/defendants filed two applications
bearing CM Nos.3892/2025 and 3891/2025, seeking recall
of orders dated 12-02-2025 and 17-02-2025 on the ground
that appellant No.2 had already passed away, therefore, the
orders whereby appeals have been restored, deserve to be
recalled. The said applications came to be disposed of vide
RSA No.12/2021
c/w RSA No.11/2021 Page 6 of 22
order dated 14.07.2025 by this Court. While declining to
recall orders dated 12.02.2025 and 17.02.2025, this Court
observed that the effect of death of appellant No.2 on the fate
of the appeals would be considered by the Court at an
appropriate stage when the applications on behalf of legal
heirs of appellant No.2 for their substitution as appellants
would be considered.
10) The legal representatives of deceased appellant No.2
filed two applications bearing CM No.2133/2025 and CM
No.2136/2025 seeking setting aside of abatement and their
substitution as appellants. Both these applications came to
be dismissed by this Court in terms of order dated
06.03.2026. While dismissing these applications, this Court
left appellant No.1 to be the sole appellant so far as the
appeal are concerned, subject to determination of the point
as to whether appellant No.1 can pursue the appeals alone,
regarding which the respondents/defendants had taken an
exception that the appeals have to stand abated in their
entirety.
11) I have heard learned counsel appearing for the parties
for determination of the question as to whether on account
of abatement of the appeals as against appellant No.2, whose
legal representatives have not been allowed to be substituted
RSA No.12/2021
c/w RSA No.11/2021 Page 7 of 22
by this Court in terms of order dated 06.03.2026, the
appeals as a whole would abate, or whether appellant No.1
can maintain these appeals despite abatement of the appeals
to the extent of appellant No.2. I have also gone through
record of the case.
12) Rule 1 of Order XXII of the CPC provides that death of
plaintiff or defendant does not cause the suit to abate if the
right to sue survives. As per Rule 2 of Order XXII of CPC,
where there are more plaintiffs or defendants than one, and
any of them dies, and where the right to sue survives to the
surviving plaintiff or plaintiffs alone, or against the surviving
defendant or defendants alone, the suit would proceed at the
instance of surviving plaintiffs or plaintiffs or against the
surviving defendant or defendants.
13) Rule 3 of Order XXII is significant for the purposes of
the present case. The same reads as under:
3. Procedure in case of death of one of several plaintiffs
or of sole plaintiff.–(1) Where one of two or more
plaintiffs dies and the right to sue does not survive to the
surviving plaintiff or plaintiffs alone, or a sole plaintiff or
sole surviving plaintiff dies and the right to sue survives,
the Court, on an application made in that behalf, shall
cause the legal representative of the deceased plaintiff to
be made a party and shall proceed with the suit.
(2) Where within the time limited by law no application is
made under sub-rule (1), the suit shall abate so far as the
deceased plaintiff is concerned, and, on the application of
the defendant, the Court may award to him the costs which
RSA No.12/2021
c/w RSA No.11/2021 Page 8 of 22
he may have incurred in defending the suit, to be recovered
from the estate of the deceased plaintiff.
14) From a perusal of sub-rule (2) of Rule 3 quoted above.,
it is clear that if no application is made for bringing on record
legal representatives of the deceased plaintiff, within the
prescribed period of limitation, the suit would abate so far
as the deceased plaintiff is concerned.
15) Rule 11 of Order XXII makes the application of said
order to appeals as well. Thus, if one of the several appellants
dies during the pendency of the appeal and the right to sue
does not survive to the surviving appellant or appellants
alone, the appeal as a whole would abate. The question
whether or not in the instant case, right to sue survives to
appellant No.1 alone, is required to be determined for
deciding the issue whether these appeals would abate as a
whole or the same have to proceed at the behest of appellant
No.1 alone.
16) The issue as in what circumstances a suit or appeal
would abate as a whole for non-substitution of legal heirs of
a deceased party, has been a matter of discussion and
deliberation in several cases decided by the Supreme Court
from time to time. In Sardar Amarjit Singh Kalra (Dead) by
LRs and others vs. Pramod Gupta (Smt.) (Dead) by LRs
and others, (2003) 3 SCC 272, the Supreme Court has,
RSA No.12/2021
c/w RSA No.11/2021 Page 9 of 22
while considering the issue as to when an appeal would
abate in its entirety for non-substitution of legal
representatives of a deceased party, observed as under:
“21……. (a) In case of “Joint and indivisible decree”, “Joint
and inseverable or inseparable decree”, the abatement of
proceedings in relation to one or more of the appellant(s) or
respondent(s) on account of omission or lapse and failure to
bring on record his or their legal representatives in time
would prove fatal to the entire appeal and require to be
dismissed in toto, as otherwise inconsistent or contradictory
decrees would result and proper reliefs could not be
granted, conflicting with the one which had already become
final with respect to the same subject matter vis-a-vis the
others; (b) the question as to whether the Court can deal with
an appeal after it abates against one or the other would
depend upon the facts of each case and no exhaustive
statement or analysis could be made about all such
circumstances wherein it would or would not be possible to
proceed with the appeal, despite abatement, partially; (c)
existence of a joint right as distinguished from tenancy in
common alone is not the criteria but the joint character of
the decree, dehors the relationship of the parties inter se and
the frame of the appeal, will take colour from the nature of
the decree challenged; (d) where the dispute between two
groups of parties centred around claims or based on
grounds common relating to the respective groups litigating
as distinct groups or bodies the issue involved for
consideration in such class of cases would be one and
indivisible; and (e) when the issues involved in more than
one appeals dealt with as group or batch of appeals, which
are common and identical in all such cases, abatement of
one or the other of the connected appeals due to the death
of one or more of the parties and failure to bring on record
the legal representatives of the deceased parties, would
result in the abatement of all appeals.
xxx xxx xxx
30. The question, therefore, as to when a proceeding before
the Court becomes or rendered impossible or possible to be
proceeded with, after it had partially abated on account of
the death of one or the other party on either side has been
always considered to depend upon the fact as to whether the
decree obtained is a joint decree or a severable one and that
in case of a joint and inseverable decree if the appeal abated
against one or the other, the same cannot be proceeded with
further for or against the remaining parties as well. IfRSA No.12/2021
c/w RSA No.11/2021 Page 10 of 22
otherwise, the decree is a joint and several or separable one,
being in substance and reality a combination of many
decrees, there can be no impediment for the proceedings
being proceeded with among or against those remaining
parties other than the deceased…..
31. 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 therefrom,
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 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 them. Actus cuirae neminem
gravabit (an act of Court shall prejudice no one) is the maxim
of law, which comes into play in such situations. 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 of their share or proportion of rights are concerned
and may drop out of contest, bringing even the proceedings
to a conclusion so far as they are concerned. If all such move
is allowed to boomerang adversely on the rights of the
remaining parties even to contest and have their claimsRSA No.12/2021
c/w RSA No.11/2021 Page 11 of 22
adjudicated on merits, it would be a travesty of
administration of justice itself.
32. The area of differences in the catena of decisions brought
to our notice is not so much with reference to the principles
to be applied to different nature of decrees but only as to
which of the decree(s) falls, when or under what
circumstances under one or the other of the classification,
i.e., joint and inseverable or joint and severable or separable.
This aspect seems to have been adjudged in different cases
depending upon the nature/source of rights, the cause of
action, the manner they were asserted by the parties
themselves and the contradictory nature of decrees
impossible of execution, likely to result when considered
differently. It is for this reason any standardised formula was
avoided and matter left for the consideration of Courts, on
the peculiar nature of the cases coming for determination.
33. Even assuming that the decree appealed against or
challenged before the Higher forum is joint and several but
deal with the rights of more than one recognized in law to
belong to each one of them on their own and unrelated to the
others, and the proceedings abate in respect of one or more
of either of the parties, the Courts are not disabled in any
manner to proceed with the proceedings so far as the
remaining parties and part of the appeal is concerned. As
and when it is found necessary to interfere with the judgment
and decree challenged before it, the Court can always
declare the legal position in general and restrict the ultimate
relief to be granted, by confining it to those before the Court
only rather than denying the relief to one and all on account
of a procedure lapse or action or inaction of one or the other
of the parties before it. The only exception to this course of
action should be where the relief granted and the decree
ultimately passed would become totally unenforceable and
mutually self- destructive and unworkable vis-a-vis the other
part, which had become final. As far as possible Courts must
always aim to preserve and protect the rights of parties and
extend help to enforce them rather than deny relief and
thereby render the rights themselves otiose, “ubi jus ibi
remedium’ (where there is a right, there is a remedy) being a
basic principle of jurisprudence. Such a course would be
more conducive and better conform to a fair, reasonable and
proper administration of justice.
34. 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 purpose of convenience or otherwise,
joined together in a single litigation to vindicate their rights,RSA No.12/2021
c/w RSA No.11/2021 Page 12 of 22
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-a-vis the remaining parties would suffer the vice of
contradictory or inconsistent decrees. For that reason, a
decree can be said to be contradictory or inconsistent with
another decree only when the two decrees are incapable of
enforcement or would be mutually self-destructive and that
the enforcement of one would negate or render impossible
the enforcement of the other.”
17) In State of Punjab vs. Nathu Ram, AIR 1962 SC 89,
the Supreme Court enumerated tests to determine whether
the whole appeal would abate on account of non-
substitution of legal representatives of one or some of the
deceased parties. The Court observed as under:
RSA No.12/2021
c/w RSA No.11/2021 Page 13 of 22
“6. The question whether a Court can deal with such
matters or not, will depend on the facts of each case
and therefore no exhaustive statement can be made
about the circumstances when this is possible or is
not possible. It may, however, be stated that ordinarily
the considerations which weigh with the Court in
deciding upon this question are whether the appeal
between the appellants and the respondents other
than the deceased can be said to be properly
constituted or can be said to have all the necessary
parties for the decision of the controversy before the
Court. The test to determine this has been described
in diverse forms. Courts will not proceed with an
appeal (s) when the success of the appeal may lead to
the Court’s coming to a decision which be in conflict
with the decision between the appellant and the
deceased respondent and therefore which would
lead to the Court’s passing a decree which will be
contradictory to the decree which had become final
with respect to the same 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 could not be
successfully executed.”
18) Again, in the case of Ram Sarup vs. Munshi, AIR 1963
SC 553, the Supreme Court held that where a decree is joint
one and a part of the decree has become final, by reason of
abatement, the entire appeal must be held to be abated.
19) The Supreme Court has, in the case of Suresh Chandra
(Deceased) through LRs & Ors. vs. Parasram & Ors. 2025
SCC OnLine 1472, after taking note of the aforesaid
judgments, summarized the legal position 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 theRSA No.12/2021
c/w RSA No.11/2021 Page 14 of 22
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-Ã -vis 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 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 inRSA No.12/2021
c/w RSA No.11/2021 Page 15 of 22
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.
20) From the foregoing analysis of the legal position, it is
clear that the question whether upon death of one of several
parties during pendency of a suit or appeal, the suit or
appeal would abate as a whole on account of non-
substitution of legal heirs of deceased party, is a matter
which has to be decided in the facts and circumstances of a
particular case. While deciding the said question, the Court
should be mindful that it cannot pass inconsistent decrees.
Thus, if due to non-substitution of LRs of a deceased party,
the decree passed against a deceased party has attained
finality by abatement of proceedings qua him, the Court
cannot set aside or modify the decree under appeal, as the
same would result in passing of inconsistent decrees. In
such a situation, the appeal would abate in its entirety.
21) Coming to the facts of the present case, the judgment
and decree passed by the learned trial court which is under
challenge in these appeals, provides for and determines the
shares of the parties to the suit in respect of their ancestral
property. It also provides the mode of adjustment of shares
between the parties. The judgment and decree under
RSA No.12/2021
c/w RSA No.11/2021 Page 16 of 22
challenge has been passed on the basis of a compromise
arrived at by the parties and the reports of the
Commissioners appointed pursuant to the said compromise.
The said judgment and the decree is clearly joint and
inseverable, inasmuch as it determines the shares of all the
parties to the suit in respect of the ancestral property.
22) If appellant No.1 is allowed to proceed with the appeals
and this Court decides to allow these appeals, then the issue
which has been settled in terms of the judgment and decree
passed by the trial court as affirmed by the 1st Appellate
Court, would get reopened, even though the said judgment
and decree has attained finality against the legal heirs of
deceased appellant No.2 as also against the defendants, who
have not chosen to challenge the same. Thus, allowing
appellant No.1 to proceed with the appeals alone would
amount to passing of two conflicting decrees, one upholding
the judgment and decree of the trial court qua the legal heirs
of appellant No.2, and the other, reopening the whole issue
of determination of shares of the parties in the ancestral
property. The judgment and decree passed by the learned
trial court which is subject matter of the present appeals
being joint and inseverable, once the appeals qua appellant
No.2 have abated, the appeals in the facts and
circumstances of the case would abate in their entirety.
RSA No.12/2021
c/w RSA No.11/2021 Page 17 of 22
23) Learned counsel for the appellants has, while relying
upon the provisions contained in Order 41 Rule 4 of the CPC,
contended that the said rule enables one out of several
plaintiffs to maintain an appeal against a decree on any
ground common to all the plaintiffs and the Appellate Court
is vested with power to reverse or vary the decree in favour
of all the plaintiffs in such a case. In order to support his
contention, the learned counsel has placed reliance upon the
judgment of Calcutta High Court in the case of Santosh
Kumar Mondal and Ors vs. Nandalal Chakraparti and
Ors., AIR 1963 Calcutta 289. In the said case, Calcutta High
Court has held that the provisions of Order 41 relate to the
procedure to be followed in an appeal and it cannot be said
that the said procedure is subject to and is governed by the
provisions of Order 22 Rules 3 and 4 CPC. The Court has
further held that when there is death of one of the appellants
and the legal representatives of deceased appellant are not
brought on record, the Appellate Court has power to do
justice to the parties and the same has not been curtailed by
the legislature.
24) The aforesaid view rendered by the Calcutta High Court
is contrary to the law settled on the issue by the Supreme
Court in the case of Suresh Chandra case (supra). In the
said case, the Supreme Court has summarized the legal
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c/w RSA No.11/2021 Page 18 of 22
position on the interplay between the provisions of Order 41
Rule 4 and Order 22 of CPC qua abatement of an appeal in
the following manner:
i. Rule 4 of Order XLI applies to the stage when an
appeal is filed and empowers one of the plaintiffs
or defendants to file an appeal against the entire
decree in certain circumstances. A plaintiff or
defendant can take advantage of this provision,
but he may not. Therefore, once an appeal is filed
by all the plaintiffs or defendants aggrieved by
the decree, the provisions of Order XLI, Rule 4
become unavailable.
ii. Rule 4 of Order XLI is to enable one of the
parties to a suit to obtain relief in appeal when
the decree appealed from proceeds on a ground
common to him and others. The court in such an
appeal may reverse or vary the decree in favour
of all the parties who are having the same interest
as the appellant, even though they have not
appealed against the decree. This is so, because it
is not the law that when a decree is passed on a
ground common to all the parties, the appeal is to
be filed by all the parties or not at all.
iii. Order XXII applies without exception to all
proceedings covered by it. It operates during the
pendency of a proceeding including an appeal
and not at its institution. Therefore, if an
appellant dies during the pendency of the appeal,
his legal representatives must be brought on
record within the period of limitation. If that is not
done, the appeal by the deceased appellant
abates.
iv. Where an appeal is filed by any one or some of
the plaintiffs, or defendants, aggrieved by the
decree, by impleading other such plaintiff(s) or
defendant(s) as proforma-respondent(s), in the
event of death of such proforma-respondent, the
benefit of the provisions of Order XLI Rule 4 would
be available to continue the appeal regardless of
substitution of LRs of such proforma-respondent.
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c/w RSA No.11/2021 Page 19 of 22
v. There is no inconsistency between the
provisions of Order XXII and those of Rule 4
of Order XLI CPC. They operate at different stages
and provide for different contingencies. There is
nothing common in their provisions which make
the provisions of one interfere in any way with
those of the other.
25) From the foregoing analysis of the legal position, it is
clear that Rule 4 of Order 41 applies at a stage when an
appeal is filed. This provision empowers one of the plaintiffs
or defendants to file an appeal against the entire decree in
certain circumstances. However, once an appeal is filed by
all the plaintiffs or all the defendants aggrieved by a decree,
and one of the parties dies during the pendency of the
appeal, the provisions of Rule 4 of 41 Rule CPC would not
come into play and the consequences of Order 22 of CPC
would follow. Thus, while it is open to one of the plaintiffs or
defendants to challenge a judgment or a decree, which
proceeds on any ground common to all the plaintiffs or
defendants, but once the appeal is filed, if one of the parties
expires during the pendency of the appeal, it is necessary for
the appellants to bring on record the legal representatives of
the deceased party, failing which the consequences provided
under Order 22 CPC would come into play and the appeal or
the proceedings would abate. In the present case, the death
of appellant No.2 has taken place during pendency of these
appeals and not before filing of these appeals, therefore, it
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c/w RSA No.11/2021 Page 20 of 22
was necessary for the surviving appellant to bring on recordthe legal heirs of appellant No.2.
26) Another contention that has been raised by counsel for
the appellants is that the estate of deceased appellant No.2
is duly represented by appellant No.1, who happens to be his
brother, therefore, the appeals as a whole do not abate. To
support his contention, the learned counsel has placed
reliance upon the judgment of the Supreme Court in the case
of Shivshankara & Anr. Vs. H. P. Vedavyasa Char, [2023]
6 SCR 359. In the said case, the Supreme Court has held
that where estate of deceased is sufficiently represented and
even if the appellant has not filed an application to bring on
record the legal representatives of a deceased appellant, the
appeal would not abate under Order 22 Rule 4 of the CPC.
However, the said position of law has been enunciated by the
Supreme Court in the peculiar facts of the said case,
inasmuch as in the said case, original defendants were the
sons of deceased defendant and, as such, they fully and
substantially represented the estate of the deceased
defendant.
27) In the present case, appellant No.1 happens to be the
brother of deceased appellant No.2. It is pertinent to mention
that deceased appellant No.2 is survived by his daughters,
who, in fact, had filed applications for substitution of their
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c/w RSA No.11/2021 Page 21 of 22
names as appellants in place of deceased appellant No.2.
However, their applications came to be dismissed by this
Court. As per the said applications, deceased appellant No.2
has left behind three daughters, who actually represent his
estate and not appellant No.1. Thus, the ratio laid down by
the Supreme Court in the aforesaid case cannot be made
applicable to the facts of the present case.
28) For what has been discussed hereinbefore, this Court
has no hesitation in holding that the impugned judgment
and decree passed by the learned trial court, being
inseverable and joint, cannot be challenged by appellant
No.1 alone without impleading the legal heirs of deceased
appellant No.2. Once the appeals qua appellant No.2 have
abated, the same would abate in their entirety and,
therefore, appellant No.1 cannot proceed ahead with the
appeals.
29) Accordingly, the appeals are dismissed as having
abated.
(Sanjay Dhar)
Judge
SRINAGAR
24.07.2026
“Bhat Altaf-Secretary”
Whether the judgment is reportable: YES/NO
RSA No.12/2021
c/w RSA No.11/2021 Page 22 of 22
