Holding

The appeal had not abated and the High Court should have exercised its power under Order 41, Rule 34 to pass a decree covering the entire suit property.

Summary

A suit filed by 56 members of the public sought a declaration of a customary right to bury the dead on two parcels of land (R.S. Nos. 975/1 and 975/2) and a permanent injunction against 15 defendants, who were the brother‑owners and subsequent purchasers of the land. The trial court decreed in favour of the plaintiffs; defendant 1 appealed to the District Court, and during that appeal defendant 2 died, leaving a widow and minor children who were not impleaded. The District Court dismissed the appeal on its merits, and the High Court later set aside the trial‑court decree but limited the relief to defendant 1 only, deleting the deceased defendant 2 from the record. The widow and children of defendant 2 appealed to the Supreme Court, raising two questions: whether the appeal had abated due to the death and non‑impleadment of the heirs, and whether the High Court could have passed a decree covering the entire suit property under Order 41, Rule 33/34 of the CPC. The Court held that the appeal had not abated because the plaintiffs’ right to sue survived against the whole property and the surviving defendants, and that the High Court should have exercised its discretionary power under Order 41 to pass a decree affecting the entire suit property. Consequently, the Supreme Court allowed the appeal, set aside the High Court’s limited decree and dismissed the plaintiffs’ suit against the whole property.

Issues considered

Whether the appeal before the District Court abated due to the death of defendant 2 and the non‑impleadment of his heirs.
Whether the High Court could pass a decree embracing the entire suit property (both survey numbers) under Order 41, Rule 33/34 of the Code of Civil Procedure.

Legislation cited

Code of Civil Procedures. Order 41 Rule 33, s. Order 41 Rule 34, s. Section 35A
Hindu Succession Acts. Section 6

Subjects

abatement of appealOrder 41 CPCcustomary rightburial groundpartitionHindu Succession Actcivil proceduredecreeappellate jurisdictioninjunction

Judgment

A CHAYA AND ORS.
v.
BAPUSAHEB AND ORS.

JANUARY 27, 1993
B [KULDIP SINGH AND P.B. SAWANT, JJ.)

Abatement-Suit by members of public for declaration of customary
right to bury dead in suit land-Suit decreed by Trial Court-Decree upheld
by District Court-During pendency of appeal defendant No.2 dies but heirs
c not brought on record nor plea of abatement raise~n second appeal before
High Court by defendant No. I name of Defendant No.2 deleted -Decree set
aside against defendant Nos. I & 2 allowed to remain against others-Heirs
of Defendant No.2 appealed to this Court-Held that according to plaintiffs
right to sue survived, despite death of Defendant No.2 against the whu.e su1r
land and against all the surviving defendants-Hence appeal had not abated.
D
Code of Civil Procedure-Order 4I, R 34-The present case was fit for
exercise of power under-Non exercise of power has resulted in rniscaniage
of justice and contradictory results in respect of same' subject matter.

The suit was filed by 56 members of public claiming declaration of
E
customary right to bury the dead in the land R.S. No. 975/1 admeasuring
2 acres and 38 G. and R.S. No. 975/2 admeasuring 5 acres, against 15
original defendants. Defendants 1 to 3 to the suit were brother-owners of
the land. The owner-defendants sold portions of the suit land and defen-
dants 4 to 15 were the purchasers of the said portions. Both the owners
F and the vendees were joined as defendants to the suit as they denied th.e
plaintiff customary right to bury the dead in the land. In the suit, a
permanent injunction restraining the defendants from obstructing the
plaintiffs in the exercise of their said right, was also claimed.

The evidence disclosed that defendant 1 claimed interest in R.s. No.
G 975/1, defendant 2 in R.S. No. '»512 and defendant 3 claimed no interest in
either of the pieces of land. Defendants 1 and 2 opposed the reliefs claimed
by the plaintiffs contending that the suit land was not a ground and that the
Municipality had provided sufficient land for burying the dead elsewhere. The
contentions of defendants 1 and 2 were adopted by defendants 4 to 8. In
H addition, they contended that they were bona fide purchasers of different
286
,•
CHAYA v. BAPUSAHEB ']J>,7
portions of the suit land under registered sale-deeds, and they had con· A
structed houses after taking necessary permission from the Municipality.

On 27th March, 1967, the Trllfl Court decreed the suit against all
::.> !"'
defendants. Defendant No. 1 (elder brother out of, the three brother
owners) alone Died an appea_I to the District Court being Regular Appeal
No. 1236 or 1967. He joined defendants 2 and 3 as respondents 55 and 56 B
to the appeal. Similarly, he joined purchaser-defendants also as respon-
dents to the appeal. Defendant 1 challenged the whole or the decree and
did not restrict his appeal to R.S. No. 975/1 alone in which he had claimed
ownership before the Trial Court.

During the pendency or the appeal, on 17th September, 1970, defen-
c
dant 2, i.e., respondent 55 died leaving behind his widow and minor
children. They were, however, not brought on record in the appeal. Plain·
tiff-respondents at no stage in the appeal raised tht.:lea or abatement of
the appej1l. The District Court decided the appeal o merits and dismissed
the same confirming the decree of the Trial Court in favour of the plain· D
~
tiffs.

Against the decision of the District Court, again defendant 1 alone
filled a Second Appeal in the High Court challenging the whole or the
decree without any reservation either regarding the land or the parties. In
E
fact, defendant 2 although, he had died In the meanwhile, was also shown
as respondent 55 to the Second Appeal. The third brother, defendant 3 and
A the purchaser-defendants were also joined as respondents to the Second
Appeal.

During the pendency or the Second Appeal, the High Court, by an F
order, deleted the name of defendant 2 (respondent 55) from the record.
On merits, the High Court held that the customary right was not estah-

--- lished and set aside the decree orthe Trial Court. However, the High Court
restricted the decree to the appellant i.e., defendant 1 only. The decree
against defendants 2 and 3 and purchaser-defendants was left undls·
turbed.
G

The widow and the children of defendant 2, i.e., the present appel·
lants, moved the High Court by a Review petition, to modify the decree and
to extend the relief to their land also, viz., R.S. No. 975/2. The High Court
did not entertain the Review Petition as being b,arred by limitation. H
f

288 SUl'REME COURT REPORTS (1993] 1 S.C.R.
A In appeal by the widow and the children of defendant 2, this Hon'hle
Court noted that the admitted facts were : Defendant 1 was the elder of .,.
the three brothers and there was nothing on record to show that though
defendant 1 claimed Interest only in R.S. 975/1 and defendant 2 in R.S.
975/2 and defendant 3 claimed interest in none, there was a partition of
""' 'X
the joint family property and the family had not continued as joinL
B
The main questions, which fell for decision were :

(i) Whether the appeal before the District Court had abated in view
of the non-impleadment of the appellaut; and
c (ii) Whether the High Court could have passed the decree embracing
the entire suit property viz., R.S. 975/1 and 975/2.

HELD : 1. Under sec. 6 of the Hindu Succession Act, upon the death
of defendant 2, there was a notional partition vesting one-fourth share of
D defendant 2 with the widow and the minor sons getting the remaining 3/4th ~
share. One-fourth share of defendant 2 will go by succession to class I heirs
comprising the widow, the two sous and the two daughters, who were the
present appellants. If the decree of the Trial Court as confirmed by the
Appellate Court is held final, it is only the one-fourth share of defendant
2 which will be burdened by the so called customary right of burial decreed
E
by the Trial Court in favour of the plaintiffs. Even this l/4th share will
stand further reduced by the area purchased by the 12 vendee/defendants
or by some of them as the case may be. The customary right claimed would
also be confined to a small patch of land. The Municipality has also
rejected the request or the plaintiffs/respondents for acquiring the entire
F land for burial purposes. [292D-F]
I
2. The Plaintiffs had themselves proceeded on the presumption that
they were concerned with the entire suit property and the customary right was ~-

to be asserted against the whole of the suit property as such, which was
sufficiently represented in law by the surviving defendants. Since, according
G to the plaintiffs, the right to sue survived against the whole property and
against the surviving defendants, notwithstanding the death of defendant 2,
the appeal had not abated. The plaintiffs had also allowed the appeal to
proceed on merits without raising the objection. of abatement of appeal. They
were barred from raising the said objection in the Second Appeal before the
-1""-
H High CourL [29311-D]
CHAYA v. BAPUSAHEB 289
On the facts or the case, it can be held that the Plaintill"s/respondents had A
or
acquiesced in the right defendant 1 to proceed with the appeal in respect of the
entire suit property, in the absence of defendant 2 or his legal representative.
[293F]

Dondapani Sahu v. Arjuna Panda and others, [1969] 3 SCC 397,
applied. B
3. The High Court had not noticed the true effect or Order 41, rule 33
of the Code of Civil Procedure. This provision is based on a salutary prin·
ciple that the Appellate Court should have the power to do complete justice
between the parties. The object of the rule is also to avoid contradidory and
inconsistent decisions on the same question in the same suit. [293G, 2940] c
For this purpose, the rule confers a wide discretionary power on the
Appellate Court to pass such decree or order as ought to have been passed
or as the case may require, notwithstanding the fact that the Appeal is only
with regard to a part of the decree or that the party in whose favour the
D
power is proposed to be exercised bas not filed any appeal or cross-objec-
tion. The power has to be exercised with case and caution. It is also true
that in an appropriate case, the Appellate Court should not hesitate to
exercise the discretion conferred by the said rule. [294E-F)

A. Granting decree in favour of defendant 1 alone, when it was not E
claimed by the plaintiffs in the original suit and based upon a common
right and asserted against the entire land which was the relief claimed by
the plaintiffs would, in the present case, result in contradictory finding,
viz., whereas the customary rtght could not be claimed against any portion
of the suit property as found hy the High Court, the Trial Court decree
for exercise of such right would continue to operate against a part of the F
land merely because the other defendants had not preferred any appeal.
[29SE]

In the circumstances, this was a lit case where the High Court ought
to have exercised its power under Order 41, rule 34. In fact, the non-ex·
ercise of the power has resulted not only in the miscarriage or justice, but
in contradictory result in respect or the same subject matter and based G
on the same alleged right. [295F]

Mahabir Prasad v. !age Ram & Others, [1971) 1 SCC 265; Harihar
Prasad Singh v. Ba/mild Prasad Singh, [1975) 1 SCC 212; Giani Ram v.
Ramji Lal, [1969) 3 SCR 944 and Koksingh v. Smt. Deokabai, [1976) 1
sec 383, relied on. .H
290 SUPREME COURT REPORTS (1993) 1 S.C.R.
A

1984.
Appeal allowed.

CIVIL APPELLATE JURISDICTION : Civil Appeal No.1657 of

From the Judgment and Order dated 8.1.1981 of the Karnataka High
---
B Court in C.P. No. 3 of 1981.

S.B. Bhasme, AS. Bhasme, S.S. Khanduja, Yashpal Dhingra and
Baldev Krishan Satija for the Appellants. '....-'

The Judgement of the Court was delivered by
c
SAWANT, J. The suit. was filed by 56 members of public claiming
declaration of customary right to bury the dead in the land R. S. No. 975/1
admeasuring 2 acres and 38 G. and R.S. No. 975/2 admeasuring 5 acres,
against 15 original defendants. Defendants 1 to 3 to the suit were brother·
owners of the land. The owner-defendants sold portions of the suit land ~
D
and defendants 4 to 15 are the purchasers of the said portions. Both the
owners and the vendees were joined as defendants to the suit as they
denied the plaintiff's customary right to bury the dead in the land. In the
suit, a permanent injunction restraining the defendants from obstructing
the plaintiffs in the exercise of their said right, was also claimed.
E ~
The evidence disclosed that defendant 1 claimed interest in R.S. No.
975/1, defendant 2 in R.S. No. 975/2 and defendant 3 claimed no interest
in either of the pieces of land. Defendants 1 and 2 opposed the reliefs
claimed by the plaintiffs contending that the suit land was not a burial
ground and that the Municipality had provided sufficient land for burying
F the dead elsewhere. The contentions of defendants 1 and 2 were adopted
by defendants 4 to 8. In addition, they contended that they were bona fide .,....
purchasers of different portions of the suit land under registered sale·
deeds, and they had constructed houses after taking nece.sary permission
from the Municipality. It does not appear from the record that the rest of
G the defendants had filed their separate written statements.

On 27th March, 1967, the Trial Court decreed the suit against all the
defendants in respect of both the suit properties viz., R.S. Nos. 975/1 and ).~
975/]..

H 2. Against the decision of the Trial Court, defendant 1 (elder brother
•

CHAYA v. BAPUSAHEB (SAWANT, J.] 291
out of the three brother-owners), alone filed an appeal to ihe District Court A
_..,....
_
,,,, being Regular Appeal No. 1236 of 1%7. He joined defendants 2 and 3 as
respondents 55 and 56 to the appeal. Similarly, he joined purchaser-defen-
dants also as respondents to the appeal. It may be stated that in the appeal,
defendant 1 challenged the whole of the decree and did not restrict his
appeal to R.S. No. 975/1 alone in which he had claimed ownership before
B
the Trial Court.

During the pendency of the appeal, on 17th September, 1970, defen-
dant 2 i.e., respondent 55 died leaving behind his widow and minor children
who are the appellants before us. They were, however, not brought on
record in the appeal. Plaintiff-respondents at no stage in the appeal raised c
the plea of abatement of the appeal. The District Court decided the appeal
on merits and dismissed the same confirming the decree of !he Trial Court
in favour of the plaintiffs.
~
-J, Against the decision of the District Court, again defendant 1 alone
filed a Second Appeal in the High Court challenging the whole of the D
decree without any reservaiion either regarding the land or the parties. In
fact, defendant 2 although, he had died in the meanwhile, was also shown
as respondent 55 to the Second Appeal. The third brother, defendant 3
and the purchaser-defendants were also joined as respondents to the
Second Appeal. E
During the pendency of the Second Appeal, the High Court, by an
order, deleted the name of defendant 2 [respondent 55] from the record.
On merits, the High court held that the customary right was not established
and set aside the decree of the Trial Court. However, the High Court
restricted the decree to the appellant i.e., defendant 1 only. The decree F
--<: against defendant 2, 3 and purchaser-defendants was left undistu;bed.

The widow and the children of defendant 2 i.e., the present appel-
lants, moved the High Court by a Review Petition, to modify the decree
and to extend the relief to their land also viz., R.S. No. 975/2. The High
Court did not entertain the Review Petition as being barred by limitation.
G
Hence, the present appeal by the widow and the children of defendant 2.
-~ 3. The questions of law which .;..;se in the present case are two, viz.,
whether the appeal before the District Court had abated in view of the
non- impleadment of the appellants, and whether the High Conrt could H
•

292 SUPREME COURT REPORTS [1993] 1 S.C.R.
A have passed the decree embracing the entire suit property viz., R.S. Nos.
975/1 and 975/2 "',_ --<..
I
4. Before answering the two questions, it is necessary to take note of
the relevant admitted facts in the case. Defendant 1 is elder of the three
owner-brothers. There is nothing on record to show that thoUgh defendant
B
1 claimed interest only in R.S. No. 975/1, and defendant 2 in R.S. No. 975/2
and defendant 3 claimed interest in none, there was a partition of the joint
family property, and the family had not continued as joint. However, for y
the purpose of the present appeal, we will hold that defendants 1 and 2
were holding the two pieces of land separately. As regards the purchaser-
c defendants, they were the vendees of different portions of both R.S. Nos.
975/1 and 975/2 and, therefore, they had interest in both the said pieces of
land along with defendants 1 and 2. It is also not disputed that there were
residential houses constructed, particularly, by the purchaser-defendants in
both the pieces of land. Under Section 6 of the Hindu Succession Act,
upon the death of defendant 2, there was a notional partition vesting 1/4th
>--
D
share in defendant 2, with the widow and the minor sons together getting
the remaining 3/4th share. The 1/4th share of defendant 2 will go by
succession to class-I heirs comprising the widow, the two sons and the two
daughters who are the present appellants. If the decree of the Trial Court
as confirmed by the appellate court is held fma~ it is only the 1/4th share
E of defendant 2 which will be burdened by the so called customary right of
burial decreed by the Trial Col!l"t in favour of the plaintiffs. Even this 1/4tb
share will stand further reduced by the area purchased by the 12 vendee-
defendants or by some of them as the case may be. Thus; the customary
right claimed would be confu\ed to a small patch of land surrounded by
F residential houses. The record shows that an approach was made to the
Municipality to acquire the entire land for burial purposes. The
Municipality rejected' the said request by pointing out firstly that enough ;>-

burial land was available elsewhere and that the present land being sur-
rounded by houses was not suitable for the burial purposes.

G
5. Coming now to the first question as to whether the appeal bad
abated, admittedly, defendant 2 had died during the pendency of the appeal
before the District Court and the present appellants were not brought on _).-4.
record. It is not disputed that the plaintiff-respondents knew of the death of
defendant 2 during the pendency of the appeal. Yet, they did not take any
H objection to appeal being beard on merits, and in fact, the appeal was beard
•

CHAYA v. BAPUSAHEB [SAWANT, J.] 293
and decided on merit. The plaintiff-respondents did not raise any objection A

- with regard to the abatement of appeal presumably because the decree of the
Trial Court embraced both the suit lands and the relief relating to the suit
lands was based on the alleged customary right common to both the lands.
Defendant 1 was the elder brother and whatever the relationship of defen-
dants 1 and 2 inter se between themselves on the one hand and between
B
defendants 1, 2, 3 and the vendee-defendants on the other, the plaintiffs
proceeded on the presumption that they were concerned with the entire suit
property and the customary right was to be asserted against the whole of the
-__,, suit property as such, which was sufficiently represented in law by the
surviving defendants. Since according to the plaintiffs, the right to sue sur-
vived against the whole of the property and against the surviving defendants, C
notwithstanding the death of defendant 2, the appeal had not abated. Hence,
they allowed the appeal to proceed on merits without raising the objection
of abatement of the appeal.

- 6. Since the plaintiff-respondent did not raise the objection with
regard to the abatement of the appeal, they were barred from raising the
said objection in the Second Appeal before the High Court. It is not
D

disputed that in the present case, the cause of action, viz., the alleged
customary right to burial did survive against the suit property as a whole.
In this connection, we may refer to the decision of this Court in Dondapani
Sahu v. Arjuna Panda and Others; [1969] 3 SCC 397 where it was held that E
when the parties proceeded almost by consent that the deceased was
represented by the surviving defendants, it was not open to the defendants
to have the matter reopened in appeal. On the facts of the present case
also, it can be held that the plaintiff-respondents had acquiesced in the
right of defendant 1 to proceed with the appeal in respect of the entire suit
F
property, in the a~sence of defendant 2 or his legal representatives.

7. As regards the question as to whether the High Court could have
extended the operation of the dccre~ to the entire suit property instead of
restricting it only to R.S. No. 975/1, we are afraid that the High Court has
not noticed the true effect of Order 41 Rule 33 of the Code of Civil G
Procedure which reads as follows :

"R.33. Power of Court of Appeal. - The Appellate Court
shall have power to pass any decree and make any order
which ought to have been passed or made and to pass or H
•

294 SUPREME COURT REPORTS [1993] 1 S.C.R.
A make such further or other decree or order as the case
may require, and this power may be exercised by the Court
notwithstanding that the appeal is as to part only of the
decree and may be exercised in favour of all or any of the
respondents or parties, although such respondents or par-
""' -
ties may not have filed any appeal or objection and may,
B
where there have been decrees in cross-suits or where two
or more decrees are passed in one suit, be exercised in
respect of all or/any of the decrees, although an appeal
may not have been filed against such deciees : y
c Provided that the Appellate Court shall not make any
order under Section 35A, in pursuance of any objection
on which the Court from whose decree the appeal is
preferred has omitted or refused to make such order."

This provision is based on a salutary principle that the appellate court
D k
should have the power to do complete justice between the parties. The object
of the rule is also to avoid contradictory and inconsistent decisions on the
same questions in the same suits. For this purpose, the rule confers a wide
discretionary power on the appellate court to pass such decree or order as
ought to have been passed or as the nature of the case may require, not-
E withstanding the fact that the appeal is only with regard to a part of the decree
or that the party in whose favour the power is proposed to be exercised has
not filed any appeal or cross objection. While it is true that since the power
is derogative of the general principle that a party cannot avoid the effect of a
decree against him without filing an appeal or cross-objection and, therefore,
F the power has to be exercised with care and caution, it is also true that in an
appropriate case, the appellate court should not hesitate to exercise the
discretion conferred by the said rule.
> -·
8. The present is one such case where according to us, the High Court
ought to have used the discretionary power conferred by the rule. The facts
G which have been sufficiently detailed above, show that a customary right by a
section of the public was sought to be asserted against the entire suit property
in which rights and interests of all the defendants were involved. The said
right could not be exercised partially in respect of only a particular piece of
land. The plaintiffs had gone to the Court asking customary right in respect
.,
~

H of the entire suit property and had not specified any particular portion of the
•
CHAYA v. BAPUSAHEB [SAWANT, J.] 295
property as the object of the exercise of the said right. Apart from the fact A
that R.S. Nos. 975/1 and 975/2 were originally the joint family property of all
the defendant-brothers, whatever the inter se relation between them with
respect to the said property, various portions of both the survey numbers
were sold to the vendee-defendants. The plaintiffs had not made clear as to
which of the remaining portions of the suit land were the subject-matter of
B
their customary right. Admittedly, on the sold lands, vendee-defendants had
constructed houses. The Trial Court while granting the decree, had excluded
portions of the land which were occupied by the residential houses. The Trial
Court, had further, not granted decree in respect of specific portions of the
suit property against specific defendants. It had granted the decree generally
against the entire land minus that occupied by the houses, and against all the c
defendants together. Defendant 1 had preferred an appeal before the Dis-
trict Court challenging the decree granted by the Trial Court against the
entire land viz., that belonging to himself and to all the other defendants. It
is that appeal which was decided on merits by the appellate court not-
withstanding the death of defendant 2 during the pendency of the appeal. D
Thus, granting decree in favour of defendant l alone when it was not claimed
by the plaintiff in the original suit, and based upon a common right asserted
against the entire land which was the relief claimed by the plaintiffs, would in
the present case result in contradictory findings viz., that whereas the cus-
tomary right could not be claimed against any portion of the suit property
(that is the finding of the High Court), the Trial Court's decree for exercise E
of such rights would continue to operate against a part of the land merely
because the other defendants had not preferred any appeal.
9. We find that in the circumstances, this was a fit case where the
High Court ought to have exercised its power under Order 41, Rule 34. In
fact, the non-exercise of the power has resulted not only in the miscarriage F
of justice but in contradictory results in respect of the same subject matter
and based on the same alleged right. In this connection, we may refer to
decisions of this Court in Mahabir Prasad v. Jage Ram and Others, [1971)
l SCC 265; Harihar Prasad Singh v. Balmiki Prasad Singh, (1975) l SCC
212; Giani Ram v. Ramji Lal, (1969) 3 SCR 944 and Koksingh v. Smt.
G
Deokabai, (1976) 1 SCC 383 to support our conclusion.

We, therefore, allow the appeal, modify the decision of the High
Court and dismiss the plaintiff's suit in respect of the entire property. In
the circumstances of the case, there will be no order as to costs.

S.L.S. Appeal allowed.