Law: Civil Procedure Code (V of 1908)

Section: O.XXII,r.4,r.11

Civil Procedure Code (V of 1908)----- ----- O. X XII, r. 4 read with r. 11-Total abatement-Only practical test-Whether appeal would be imperfectly constituted without legal representatives of deceased respondent being brought on record-Appeal arising from decree for joint possession of shamilat land and for removal of structure over site in dispute-Criteria for abatement exhaus­tively discussed. Held, that the only practical test for determining whether there is total abatement of an appeal is whether the appeal becomes imperfectly constituted if the legal representatives of a deceased respondent are not brought on record in time Held, that such a result did not follow in the case of a decree for joint possession of a site forming part of the village shamalat and for removal of structures over such site. An appeal is held to abate in toto: (1) if in the absence of the deceased respondent the appeal is not properly constituted ; (2) if a decision on the merits will result in contradictory decrees; and (3) if in view of the decree in favour of the deceased respondent any further decree which may be passed, will be ineffective. Of these No. (2) is really dependent on No. (1) ; and No. 3 is relevant only in cases of discretionary relief, refusal to grant which cannot properly be termed "abatement." Sant Singh and another v. Gulab Singh and others A I R 1928 Lah. .573, Nanak v. Ahmad Ali A I R 1946 Lah. 399, Hayat v. Mutalli A I R 1938 Lah. 35 and Karam Khan v. Mast Ali Khan A I R 1927 Lah. 851 ref. Criteria for abatement exhaustively discussed. JUDGMENT B. Z. KAIKAUS, J.------One Fazal Dad, a proprietor of village Makhan, District Gujrat, purchased a house from one Allah Rakha who was a non-proprietor in the village. At this Nek Alam and 39 other proprietors filed a suit against Fazal Dad, impleading the rest of the proprietors as pro forma defendants. for joint possession of the house to the extent of 8/9th share. The allegations in the plaint were that the site on which the house was built was shamilat, that the house too had been built by the proprietors themselves, and that Allah Rakha had no right to sell the house. The suit was dismissed by the trial Court on…

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