# SHASHIBUSHAN PRASAD MISHRA & ANR v. BABUJI RAI & ORS

- **Citation:** [1969] 2 S.C.R. 971
- **Court:** Supreme Court of India
- **Decided:** 1968-11-27
- **Case number:** Civil Appeal No. 1110 of 1965
- **Bench:** S. M. S!Kri, R. S. Bachawat, K. S. Hegde
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shashibushan-prasad-mishra-anr-v-babuji-rai-ors-4821
- **Pages:** 5

## Headnote

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 dismissed 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 whether 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 plaintiffs were entitled to prosecute their appeal against the contesting defendants in the absence of the deity. [973 G-H; 974 A-BJ
(iii) The ~as~ of Muni Bibi v. Trilokinath shows that a decision operates 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
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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 presence 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 inconsistant decrees.
The High Court was in error in holding that the appeal
against the contesting defendants became incompetent. [974 D-E]

## Text

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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 dismissed 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 whether 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 plaintiffs were entitled to prosecute their appeal against the contesting defendants in the absence of the deity. [973 G-H; 974 A-BJ
(iii) The ~as~ of Muni Bibi v. Trilokinath shows that a decision operates 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
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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 presence 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 inconsistant 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 1946 instituted in the Court of the First Additional Subordinate
Judge, Darbhanga.
The plaintiffs claimed declaration of their
title and possession in respect of 70 bighas of land in plot No. 1083
in village Siripur Majrahia. They obtained settlements of the
lands from the deity Shri Radhakrishan Jee Baldeojee. The deity
was the 16 annas proprietor of village Siripur Majrahia Pergana
Jankhalpur, Tauzi No. 2794. The river Karey flows between this
village and tire villages of Kazi Dumra and Shankarpur.
The
contesting defendants were tire landlords and tenants of villages
Kazi Dumra and Shankarpur. The deity was defendant No. 18
and was represented by one Tantreshwar Singh.
The plaintiffs
clainred tirat in consequence of tire chainges in the channel of the
river Karey the lands in suit were lost to villages Kazi Dumra and
Shankarpur by cliluvion and were annexed to plot No. 1083 in
village Siripur Majrahia by gradual increment and accretion. The
trial Court dismissed tire suit. It held tlrat ( 1) tire suit
lands did not accrete to plots Nos. 1083 aind 1089 in village Siripur Majrahia due to slow, gradual and inrperceptible changes in
the channel of tire river Karey, (2) there was no custom in the
village by which the disputed lands became tire property of the
owner of those plots, (3) the deity Radha Krishanji Baldeoji or
tire owner of village Siripur Majrahia did not obtain possession of
the lands in the manner alleged in the plaint, ( 4) the lands originally belonged to the proprietors of villages Kazi _Dumra and
Shankarpur and continued to be their property and ( 5) tire plaintiffs failed to prove their title and possession in respect of the suit
lands within 12 years before the date of the institution of the suit.
The plaintiffs filed F.A. No. 291 of 1951 _in the High Court _of
Patna against the decree passed by the Tnal Court. The deity
Shri Radha Krishanji Baldeoji, the original defendant No. 18 was
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s. P. MISHRA, v. BABUJ! RA! (Bachawat, I.)
973
impleaded as respondent No. 23 in the appeal. By an order dated
January 24, 1952 the High Court appointed the Deputy Registrar
as the guardian of the deity.
On February 18, 1952 the High
Court passed the following order :-
"Two week's further time is allowed to deposit D.R.
guardian's cost for respondent No. 23 (deity) failing
which this appeal shall stand dismissed against him without further reference to a Bench."
This peremptory order was not complied with and on the expiry
of the two weeks the appeal stood dismissed against the deity. At
the hearing of the appeal the contesting defendants urged that the
eintire appeal became incompetent in view of the dismissal oi the
appeal against the deity.
The High Court accepted this contention and dismissed the appeal in its entirety.
The High Court
held that there was a olear issue between defendant No. 18 and
the contesting defendants as to whether the lands formed part of
the village Siripur Majrahia, that the issue stood concluded against
defendant No. 18 by the decree of the Trial Court, that the appeal
had abated against defendant No. 18 and that as success in the
appeal might lead to conflicting and inconsistent decrees, the
appeal against all the defendants became incompetent. The present appeal has been filed by the plaintiffs after obtaining a
certificate from the High Court.
Clearly, 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 the abatemeJllt of
the appeal.
Mr. C. B. Agarwala relying on the case oi M unni
Bibi v. Trilokinath (') submitted that the decision of the Trial
Court on the question whether 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 became incompetent. We are unable to accept these contentions.
The plaintiffs claiming as tenants of the deity sued the
contesting defendants for declaration of their title and possession
in respect of the suit lands on the allegation that the lands appertaiine~ to village S~ripur Majrahia of which the deity was the
propnetor. The deity was not a necessary party to the suit.
It
was joined as a defendant, but no relief was claimed against it.
The suit was dismissed on a finding that the suit lands did not
appertained to village Siripur Majrahia.
The plaintiffs filed an
appeal against the decree impleading the deity as one of the respondents.
The appeal was dismissed against the deity for non-
(I) L.R. 58 I.A. 158.
974
SUPREME COURT REPORTS
[1969) 2 S.C.R.
payment of costs of its guardian ad litem. The deity was not a
neeessary party to the appeal.
The plaintiffs were entitled to
prosecute their appeal against the contesting defendaints in the
absence of the deity.
As soon as the appeal was filed by the plaintiffs in the High
Court the decision of the Trial Court lost its character of finality
and the question whether the suit lands appertained to village
Siripur Majrahia became once again res sub judice. The case of
Munni Bibi v. Trilokinatlz(1) shows that a decision operates
as res judicata between co-defendants ii (1) there is a conflict
of interest between them; (2) it is necessary to decide that conflict
in order to give the plaintiffs the reliefs which they claim and ( 3)
the question between the co-defendants is finally decided. fu the
present case, the third condition was not satisfied. The question
whether the suit lands appertain to Siripur Majrahia was not finally
decided between the deity and the co-defeindants.
On the filing
of the appeal by the plaintiffs, the question became once more th~
subject of judicial inquiry between the deity and thf> contesting
defendants.
Before the appeal was finally heard and decided,
it was dismissed as against the deity for nop:L-payment of its guardian's costs. The appellate court did not give any decision on the
merits of the case in the presence of the deity. There is no final
decision against the deity on the question of the title to the suit
lands.
The decision of the appellate court against the contesting
defendants will not lead to conflicting and inconsistent decrees.
The High Court was in error in holding that the appeal against
the contesting defeindants became incompetent.
In the circumstances the High Court ought to have decided
the appeal before it on the merits. Counsel for the parties agreed
that the decision. of the present appeal on the merits would abide
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by the decision in C.A. No. 140 of 1966 arising out of T.S. No. 'F
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29/11 of 1946.
That suit and T.S. No. 12/9 of 1946 out of
which the present appeal arises were heard together by the Trial
· Court and disposed of by a common judgment. In C.A. No. 140
of 1966 we have held that the disputed lands appertained originally
to village Kazi Dumra and Shankarpur, that due to the recession
of the river Karey the lands re-formed in situ and that the property
in the lands continued to remain with the proprietors of the lands
in villages Kazi Dumra and Shankarpur. The plaintiffs failed to
prove that the deity Shri Radha Krishnaji Baldeoji came into
possession of the disputed land as alleged in the plaint.
There
was no issue on the question whether the deity had acquired title
to the suit ]ands by adverse possession.
The plea of acquisition
of title by adverse possession cannot be raised for the first time
at the appellate stage. The plaintiffs failed to establish acquisition
of title of the deity to any portion of the suit lands by adverse
(l) L.R. 581.A. 158.
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s. P. MISHRA v. BABUJI RA! (Bachawat, j,)
91~
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possession.
It follows that there was no merit in F.A. No. 235 of
1951.
Although the High Court did not decide this appeal cm the
merits, it is not necessary to remand the matter to the High Court.
Having regard to our findings in C.A. No. 140 of 1966, T.S. No.
12/9 of 1946 also must be dismissed.
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In the result, the appeal is dismissed.
There will be no order
as to costs.
Y.P.
Appeal dismiss~d .
L6Sup. CI/69-11