SHASHIBUSHAN PRASAD MISHRA & ANR. versus BABUJI RAI & ORS.

Citation: [1969] 2 S.C.R. 971 · Decided: 27-11-1968 · Supreme Court of India · Bench: S.M. SIKRI · Disposal: Dismissed

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Judgment (excerpt)

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971 
SHASHIBUSHAN PRASAD MISHRA & ANR. 
v. 
BABUJI RAI & ORS. 
November 27, 1968 
[S. M. S!KRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.] 
Practice and Procedure-Apoeal dismissed by High Court as against 
a respondent who is not 
necessary 
party-Appeal whether 
abates as 
against other respondents-Res juOicata between co-defendants. 
The plaintiffs (appellants herein) obtained settlements of certain land 
owned by a deity in village Siripur Majrahia in Bihar. The contesting de-
'fendants (respondents herein) owned lands in the villages uf Kazi Dumra 
and Shankarpur which were separated from Siripur Majrahia by a river. 
The plaintiffs claimed that in consequence of the changes in the channel 
of the aforesaid river the lands in suit were lost to· villages Kazi Dumra 
and Shankarpur by diluvion and were annexed to their land in village 
Siripur Majrahia by gradual increment and accrelion. 
The deity was also 
made defendant No. 18 in the suit although no relief was claimed against 
it. The trial court dismissed the suit and the plaintiffs appealed to High 
Court, again impleading the deity as a 
respondent. They, however, 
failed to deposit 'the cost of the guardian ad /item of the deity appointed 
by the High Court and the Court thereupon dismissed the appeal as 
against the deity. The 
contesting defendants urged at the hearing that 
the entire appeal had become incompetent in view of the dismissal of the 
appeal against the deity. Accepting the contention the High Court dis-
missed the appeal. 
It held inter alia, that the appeal had abated against 
the deity. The plaintiffs filed appeal, with certificate, in this Court. 
On 
behalf of the respondents reliance was placed on Muni Bibi v. Trilokinath 
and it was urged that the decision of the trial court on the question whe-
ther the suit lands appertained to village Siripur Majrahia operated as res 
judicata between the deity and the contesting 
co-defendants, 
that the 
appellate court could not record an inconsistent finding that the suit lands 
appertained to village Siripur Majrahia, and that in the circumstances, 
the entire appeal before the High Court had become inCllmpetent. 
HELD : (i) The High Court was in error in holding that the appeal 
had abated either wholly or in part. None of the parties to the appeal 
had died and there was no question of abatement of the appeal. [973 E] 
(ii) The deity was not a necessary party to the appeal and the plain-
tiffs were entitled to prosecute their appeal against the contesting defend-
ants in the absence of the deity. [973 G-H; 974 A-BJ 
(iii) The ~as~ of Muni Bibi v. Trilokinath shows that a decision ope-
rates as res 1ud1cata between co-defendants 1f (I) there is a conflict of 
inter.est betwee~ t~em; (2) i~ is nec~ssary to decide that conflict in order 
to give the plamtiffs the reliefs which they claim and (3) the question 
between the ·co-defendants 1s finally decided. 
In the present case the 
third condition was not satisfied. The question whether the suit lands 
appertained to Siripur Majrahia wa_s not finally decided between the deity 
and the co-defendants. On the fihng of the appeal by the plaintiffs the 
question became once more the subject of judicial enquiry betwee; the 
deity and the contesting defendants. [974 B-D] 
Muni Bibi v. Trllokinath, L.R. 58 LA. 158, referred to. 
972 
SUPREME COURT REPORTS 
[1969] 2 S.C.R. 
(iv) Before the appeal was finally heard and decided, it was dismissed 
A 
as against the deity for non-payment of its guardian's costs. 
The appel-
.i._ 
late court did not give any decision on the merits of the case in the pre-
sence of the deity. There was no final decision against the deity on the 
question of title to the suit lands. The decision of the appellate court 
against the contesting defendants would not lead to conflicting and incon-
sistant decrees. 
The High Court was in error in holding that the appeal 
against the contesting defendants became incompetent. [974 D-E] 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1110 of 
1965. 
Appeal from the judgment and decree dated July 6, 1959 of 
the Patna High Court in First Appeal No. 235 of 1951. 
Sarjoo Prasad and B. P. Iha, for the appellants. 
C. B. Agarwala, P. K. Chatterjee ancl R. B. Datar, for the 
respondents (in Excepting respondents Nos. 15(b) to 15(d). 
The Judgment of the Court was delivered by 
Bachawat, J. 
This appeal arises out of Title Suit No. 12/9 
of 194

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