SHAHAZADA BI AND ORS. versus HALIMABI (SINCE DEAD) BY HER LRS.

Citation: [2004] SUPP. 3 S.C.R. 222 · Decided: 30-07-2004 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed

Judgment (excerpt)

A 
B 
SHAHAZADA BI AND ORS. 
v. 
HALIMABI (SINCE DEAD) BY HER LRS. 
JULY 30, 2004 
(S.B. SINHA AND S.H. KAPADIA, JJ.] 
Code of Civil Procedure, 1908-0rder 22 Rule 4-Abatement of 
suit-Suit for possession of rooms in separate possession of each of the 
defendants-Defendants claiming to be tenants-in-common and have 
C perfected their title by adverse possession to each of the rooms-During 
pendency of the suit, one of the defendants died who had leased out the 
room in his possession to other-Omission to implead legal representatives 
of defendant-Right to sue-Held: Evidence showed different rooms to be 
in possession of different defendant, as such interest of co-defendants 
separate-Hence, suit will abate only as regard the particular interest of 
D deceased defendant and not as a whole-Order of trial court right in 
decreeing the suit of plaintiffs only against defendants other than deceased 
defendant. 
Respondent-plaintiffs are wife and children ofE. According to the 
E plaintiffs, the suit property was a self acquired property of E. Plaintiffs 
filed suit for possession of seven rooms in the suit property, in separate 
possession of each of the appellant-defendants. Defendants no. 1 to 4 
pleaded that they were tenants-in-common and had joint interest in the 
property. The said plea was negated in a previous suit where the decree 
F became final. Defendants also perfected their title by adverse possession 
over the suit property. During the pendency of the suit, defendant no. 
4 who had let out the room in his possession to defendant no. 5, died 
and the plaintiffs failed to take steps to bring the LRs of defendant no. 
4 on record. Trial Court held that the property was self acquired 
property of E, and also dismissed the claim of the defendants based on 
G adverse possession. It held that on demise of defendant no. 4 and on 
failure of the plaintiffs to implead LRs of defendant no. 4 on record, 
the entire suit did not abate. Therefore, it decreed the suit against 
defendants no. l to 3 and dismissed the suit against defendant no. 4. 
However, lower appellate court held that since the plaintiffs had sought 
H for a joint decree against defendants no. l to 4 and on the demise of 
222 
SHAHAZADA BI v. HALIMABI 
223 
defendant no. 4 and on failure to implead his LRs on record, the entire A 
suit abated. In appeal, High court held that as each of the defendants 
was in separate independent possession of each of the rooms, the reliefs 
prayed for were divisible and the decree was enforceable separately 
against each of the defendants and allowed the appeal, restoring the 
decree of trial court. Hence the present appeal. 
Dismissing the appeal, the Court 
HELD : I. Order 22 Rule 4 of Code of Civil Procedure, 1908 lays 
down that where within the time limited by law, no application is made 
B 
to implead the legal representatives of a deceased defendant, the suit C 
shall abate as against a deceased defendant. This rule does not provide 
that by the omission to imp lead the legal representative of a defendant, 
the suit will abate as a whole. What was the interest of the deceased 
defendant in the case, whether he represented the entire interest or 
only specific part is a fact that would depend on the circumstances of D 
each case. If the interests of the co-defendants are separate, as in case 
of co-owners, the suit will abate only as regards the particular interest 
of the deceased party and not as a whole. (229-D-F) 
2. In the instant case, plaintiffs instituted the suit for recovery of 
possession of seven rooms separately mentioning the rooms in possession E 
of each of the defendants in the plaint and sought possession of each 
of the rooms separately from each of the defendants. In the evidence, 
plaintiffs produced and proved the map based on the description of the 
seven rooms and there was no chal!enge to the map or to the 
description of the suit property. Trial court on evidence found that F 
n1ap showed different rooms to be in possession of different defendants 
who claimed to be tenants-in-common in possession of each of the seven 
rooms with the consent of E and have perfected their title by adverse 
possession to each of the seven rooms. Trial court rejecterl their claim. 
Trial Court further found that defendant no. 4 was in possession of a 
room leased out to defendant no. 5 for rent. However, defendant no. G 
4 had died during tlie-pendency of the suit and plaintiffs failed to bring 
on record th

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