Gulam Ahmad Raina & Anr vs Mst. Hameeda Akhtar & Ors on 24 July, 2026

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    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

    SPONSORED

    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 the

    RSA 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. If

    RSA 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 claims

    RSA 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 the

    RSA 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-à-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 in

    RSA 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

    RSA No.12/2021
    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.

    RSA No.12/2021
    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

    RSA No.12/2021
    c/w RSA No.11/2021 Page 20 of 22
    was necessary for the surviving appellant to bring on record

    the 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

    RSA No.12/2021
    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



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