IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.855 OF 2007 (DEC) BETWEEN 1. PAKEERA (MALERA) JENDA SAB SINCE DEAD BY LRS 1(a). SMT.GULAB JAN W/O LATE PAKKIRA JINDA SAB AGE: 60 YEARS 1(b). M.MADAR SAB S/O LATE PAKKIRA JINDA SAB AGE: 44 YEARS 1(c). SRI M.SUBHAN SAB S/O LATE PAKKIRA JINDA SAB AGE: 40 YEARS 1(d). SRI M.SAYED AHAMAD S/O LATE PAKKIRA JINDA SAB AGE: 40 YEARS A1(a) TO A1(d) ARE R/O R/O ARASIKERI VILLAGE HARAPANAHALLI TALUK DAVANAGERE DISTRICT 1(e). SMT.SHEEDA BANU W/O LATE MAHABUBU BHASH BENKI D/O LATE PAKKIRA JINDA SAB AGE: 34 YEARS R/O # 437, S.J.M. NAGAR KONDAJJI ROAD, 1ST CROSS DAVANAGERE TOWN DAVANAGERE DISTRICT 2. PAKEERA IMAM HUSSAIN S/O DODDA MADAR SAB AGE: 50 YEARS AGRICULTURIST ARASIKERE VILLAGE HARAPANAHALLI TALUK DAVANGERE DISTRICT – 577 001 ... APPELLANTS (BY SMT.RADHA V.D., ADVOCATE FOR SRI LINGA MURTHY, ADVOCATE FOR M/S KOLAR AND KOLAR) AND 1. KHAJI MOHAMMAD HUSSAIN SAB @ BASHA SAB S/O DADA SAB AGED 40 YEARS AGARBATHI AGENT R/O ARASIKERE VILLAGE HARAPANAHALLI TALUK NOW R/AT CHITRADURGA – 577 001 2. PAKEERA RAHAMATHULLA S/O CHAMAN SAB AGED 58 YEARS AGRICULTURIST MANDALUR VILLAGE DAVANGERE TALUK AND DIST – 577 001 3. PAKEERA ABDUL MAZEED S/O CHAMAN SAB AGED 56 YEARS LORRY HAMALI YERAGUNTE ROAD NEW CAMP, MAIN ROAD DAVANGERE TALUK AND DIST – 577 001 4. PAKEERA ABDUL SALAM SAB DEAD BY LRS (a) SMT.MAIMANBEE W/O LATE PAKEER ABDUL SALAM SAB 42 YEARS, HOUSEHOLD (b) MAMTAJA D/O LATE PAKEER ABDUL SALAM SAB, 25 YEARS COOLIE (c) UMAR BASHA S/O LATE PAKEER ABDUL SALAM SAB, 23 YEARS AUTO DRIVER (d) IDAYATH S/O LATE PAKEER ABDUL SALAM SAB, 21 YEARS BELDAR (e) HASEENA D/O LATE PAKEER ABDUL SALAM SAB 17 YEARS, COOLIE (f) KOUSAR S/O LATE PAKEER ABDUL SALAM SAB, MINOR (g) APSAR S/O LATE PAKEER ABDUL SALAM SAB MINOR (h) SADDAM S/O LATE PAKEER ABDUL SALAM SAB MINOR 4(e) TO (h) – MINORS – REPRESENTED BY NATURAL MOTHER i.e., 4(a) ALL ARE R/O YARAGUNTA ROAD NEW CAMP, MAIN ROAD DAVANGERE TALUK – 577 001 5. PAKEERA MOHAMMED KHALEEL S/O CHAMAN SAB AGED 45 YEARS BUS DRIVER, MEHABOOB NAGAR 5TH CROSS, DAVANGERE – 577 001 6. PAKEERA ABDUL JABBAR S/O CHAMAN SAB AGED 42 YEARS LORRY DRIVER YERAGUNTE ROAD NEW CAMP MAIN ROAD DAVANGERE – 577 001 7. PAKEERA MOHAMMED ABBAS S/O CHAMAN SAB AGED 40 YEARS HOUSEHOLD GOURI SHANKAR SAW MILL HEAD OFFICE ROAD CHITRADURGA-577 001 8. SMT.JEENATHABI W/O K.H. MOHAMMAD HUSSAIN SAB AGED 51 YEARS HOUSEHOLD GOURI SHANKAR SAW MILL HEAD OFFICE ROAD, CHITRADURGA 9. PAKEERA BASHA SAB DEAD BY LRS (a) IMAMBI D/O PAKEER BASHA SAB 40 YEARS, COOLIE (b) JAHIDA D/O PAKEER BASHA SAB 38 YEARS, COOLIE (c) MEHABOOB BI D/O PAKEER BASHA SAB 35 YEARS, COOLIE 9(a) TO (c) ARE R/O 1ST WARD, ARASIKERE VILLAGE HARAPANAHALLI TALUK DAVANGERE DISTRICT – 577 001 10. PAKEERA SANNA MADARA SAB DEAD BY LRS (a) SMT.SHARIFA BI W/O PAKEERA SANNA MADAR SAB 65 YEARS, HOUSEHOLD (b) SMT FATHIMA BI D/O PAKEERA SANNA MADAR SAB 47 YEARS, COOLIE (c) SUBAN SAB S/O PAKEER SANNA MADAR SAB 45 YEARS AGRICULTURIST (d) MADAR SAB S/O PAKEER SANNA MADAR SAB 42 YEARS, BELDAR (e) RAFIQ SAB S/O PAKEER SANNA MADAR SAB 38 YEARS FRUIT MERCHANT (f) SMT. KHURSHID BI D/O PAKEER SANNA MADAR SAB 35 YEARS, COOLIE 10(a) TO (f) ARE R/O 1ST WARD, ARASIKERE VILLAGE HARAPANAHALLI TALUK DAVANGERE DISTRICT – 577 001 11. PAKEERA MAHABOOB SAB S/O IBRAHIM SAB AGED 49 YEARS 12. PAKEERA RAFI SAB S/O LATE IBRAHIM SAB AGED 47 YEARS R11 AND R12 ARE AGRICULTURISTS ARASIKERE VILLAGE HARAPANAHALLI TALUK – 577 001 13. HIKKAMAGERI AJJAPPA DEAD BY LRS (a) SMT.A.H.HALAMMA W/O AJJAPPA 76 YEARS, HOUSEHOLD (b). A.H.MALLIKARJUNA S/O AJJAPPA 46 YEARS, AGRICULTURIST (c). A.H.PAMPANNA S/O AJJAPPA 44 YEARS, AGRICULTURIST R13(a) TO R13(c) ARE R/O ARASIKERE VILLAGE HARAPANAHALLI TALUK DAVANGERE DISTRICT – 577 001 (d) SMT.SAVITHRAMMA D/O AJJAPPA AND W/O AKKANDI KOTRESHAPPA 42 YEARS, HOUSEHOLD R/O OBALAPURA VILLAGE HARAPANAHALLI TALUK – 577 001 (e). SMT.EASHAKKA D/O AJJAPPA AND W/O BHARMAPPA 40 YEARS, HOUSEHOLD R/O KANCHIKERE VILLAGE HARAPANAHALLI TALUK – 577 001 (f) BASAVARAJA S/O AJJAPPA 38 YEARS, LECTURER R/O ARASIKERE VILLAGE HARAPANAHALLI TALUK – 577 001 (g) SMT.JATHAVVA D/O AJJAPPA AND W/O HARAPANAHALLI ESHAPPA 36 YEARS, HOUSHOLD R/O GUNDAGATTI VILLAGE HARAPANAHALLI TALUK- 577 001 (h) KOTRAPPA S/O AJJAPPA 34 YEARS, AGRICULTURIST (i) EESHAPPA S/O AJJAPPA 32 YEARS, AGRICULTURIST 13(h) AND (i) ARE R/O ARASIKERE VILLAGE HARAPANAHALLI TALUK DAVANGERE DISTRICT – 577 001 … RESPONDENTS (VIDE ORDER DATED 01.08.2011 APPEAL DISMISSED AGAINST R1 AS ABATED;
R2, R3, R5, R6, R9(a) TO R9(c), R10(a) TO R10(f), R11, R12, R13(a) TO R13(i) ARE SERVED;
R4(a) TO R4(d) ARE HELD SUFFICIENT;
R4(e) TO R4(h) ARE MINORS REPTD. BY R4(a); VIDE ORDER DATED12.10.2011 R7 AND R8 ARE HELD SUFFICIENT) THIS RSA IS FILED UNDER SECTION 100 READ WITH ORDER 42 RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED: 16.12.2006 PASSED IN R.A.NO.216/2002 (OLD NO.59/01) ON THE FILE OF THE CIVIL JUDGE (SR.DN.), HARIHAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 24.03.2001 PASSED IN OS.NO.75/1986 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) AND JMFC, HARAPANAHALLI.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Heard Sri Iqbal Patel, the counsel who has filed power for legal representatives of deceased respondent No.1 on office objections and heard both side.
2. Respondent No.1 filed O.S.No.75/1986 against the appellants before the Civil Judge (Jr.Dn.) and J.M.F.C., Harapanahalli for declaration of his title and possession. That suit came to be decreed.
3. Challenging the said judgment and decree, the present appellants filed R.A.No.216/2002 before the Senior Civil Judge, Harihar. That appeal also came to be dismissed on 16.12.2006. Challenging the said judgment and decree the present appeal is filed.
4. Pending this appeal, respondent No.1/the sole plaintiff died on 30.06.2008. His legal representatives were not brought on record. Therefore, this Court vide order dated 01.08.2011 dismissed the appeal against respondent No.1 as abated. Even thereafter till this day the appellant has not brought the legal representatives of deceased respondent No.1 on record.
5. Sri. Iqbal Patel, learned counsel submits that since interim stay was granted in this case, execution proceedings before the trial Court are stalled.
6. Since respondent No.1 who was the sole decree holder died and his legal representatives were not brought on record, the whole appeal abates. Other respondents in the appeal were the co- defendants and they were not the decree holders.
7. The Hon’ble Supreme Court in Ram Sarup v. Munshi and Others1 has held that where a decree is indivisible and has become final, by reason of abatment, the entire appeal abates. Further, in Budh Ram and Others v. Bansi and Others2 the Hon’ble Apex Court held that whether the judgment/decree passed in the proceedings vis-a-vis. remaining parties would suffer the vice of 1 AIR 1963 SC 553 2 (2010) 11 SCC 476 being contradictory or inconsistent decree is the relevant test in continuing the appeal against the other respondents.
8. The case on hand is still more serious than the aforesaid judgments of the Hon’ble Supreme Court as respondent No.1 was the sole decree holder. Once the appeal against him abated, appeal against other respondents does not survive for consideration. Therefore, the entire appeal is dismissed as abated.
In view of dismissal of the appeal, the pending office objections stood disposed of. No further orders are required on the office objections.
Sd/- JUDGE KG