CHAYA AND ORS. versus BAPUSAHEB AND ORS.

Citation: [1993] 1 S.C.R. 286 · Decided: 27-01-1993 · Supreme Court of India · Bench: KULDIP SINGH · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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CHAYA AND ORS. 
v. 
BAPUSAHEB AND ORS. 
JANUARY 27, 1993 
[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 
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. 
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 
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 
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. 
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 
addition, they contended that they were bona fide purchasers of different 
286 
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CHA YA v. BAPUSAHEB 
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portions of the suit land under registered sale-deeds, and they had con· 
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structed houses after taking necessary permission from the Municipality. 
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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 
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No. 1236 or 1967. He joined defendants 2 and 3 as respondents 55 and 56 
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. 
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During the pendency or the appeal, on 17th September, 1970, def en-
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 
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the same confirming the decree of the Trial Court in favour of the plain· 
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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 
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fact, defendant 2 although, he had died In the meanwhile, was also shown 
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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. 
During the pendency or the Second Appeal, the High Court, by an 
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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-
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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· G 
turbed. 
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 

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