Full Judgment
S.K. Mohanty, J.
1. Plaintiffs are in appeal against a reversing decision dismissing plaintiffs' prayer for declaration of title in respect of 1/4th share in the suit lands measuring about two acres.
2. Krushna (defendant No. 4), Indramani (father of defendants 1 to 3) and Batakrushna (defendant No. 6) are the sons of one Balaram. Plaintiff No, 3 is the widow and plaintiffs 1 and 2 are the issues of one Narahari who died in 1948. Balaram was the intermediary in respect of the suit lands and his estate vested in the State Government in the year 1963. After vesting, within the prescribed period as claim was preferred in respect of the suit lands for settlement of fair and equitable rent under Sections 6 and 7 of the Orissa Estates Abolition Act. Thereafter in pursuance of Revenue Department S.O. No. 14392 dated 2-3-1964 (commonly known as Lease Principles) in which was extended from time to time, Krushna, Indramani andBatakrushna filed Case No. 1025 of 1975 in the year 1970 for lease of the suit lands in their names, Ultimately the D.E.A. Collector by order dated 20-4-76 settled the suit lands in the names of the three brothers Krushna, Indramani and Batakrushna. Then on 4-5-76, the plaintiffs claiming to be the heirs of Narahari filed their objection seeking review of order dated 20-4-76 on the ground that they had 14th interest in the suit lands. On 20-2-78, the Additional Tahsildar after review, ordered settlement of the suit lands ' on both plaintiffs and defendants. Against such order the defendants carried Lease Appeal No. 3 of 1978 before the S.D.O. He allowed the same, thereby confirming the order dated 20-4-1976 passed by the O.E. A. Collector setting the suit lands with the defendants alone.
3. On these facts plaintiffs brought the suit for declaration of their title in respect of 1/4th share on the ground that settlement of the lands in favour of the defendants enured to the benefit of all the co-sharers.
4. Batakrishna (defendant No. 6 alone) filed his written statement and contested the suit at the trial. The stand taken by him was that Narahari was not the son of Balaram and settlement of the suit lands in favour of the defendants could not in law enure to the benefit of the plaintiffs. It is specifically mentioned in the written statement that after the Lease Case was filed, public notice was issued, proclamation was made in the locality and as no objection was filed during the prescribed period, the O.E. A. Collector after being satisfied about the claim of the defendants, settled the suit lands with them, and ultimately the Revenue Authorities have rightly decided the question of settlement of the suit lands in favour of the defendants.
5. Both the courts below have concurrently held that Narahari is the son of Balaram and quite fairly this finding was not challenged in this Court.
6. The trial Court held that settlement in favour of the defendants enured to the benefit of both the parties, they being co-sharers, and accordingly decreed the suit. Defendant No. 6 Batakrishna carried the matter in appeal which was allowed reversing the above finding and hence this Second Appeal.
7. Learned Counsel for the appellants submitted that even according to Lease Principles the benefit of settlement must enure to the benefit of entire body of co-sharers, even though all of them did not join together in preferring the application for settlement. In support of his argument he relied on the Division Bench decision of this Court in Bhagaban Panda v. Dullav Panda, AIR 1991 Ori 66.
Learned Counsel for the respondents, on the other hand, submitted that the question of settlement enuring to the benefit of all co-sharers would have arisen only if the claim for settlement of fair and equitable rent had been preferred under Sections 6 and 7 of the O.E.A. Act, 1951. Section 8-A(3) of the Act prescribed a time-limit for filing claims and admittedly none of the parties preferred their claims within such time limit and therefore their right to prefer the same stood extinguished. Settlement of the suit lands in favour of the defendants under lease principles is comparable to settlement by a landlord (in this case the State) in his own right. Therefore, settlement in favour of the defendants cannot enure to the benefit of the plaintiffs, even if they were also ex-intermediaries, in support of his argument he relied on the single Judge decision of this Court in Kunja Meher v. Narayan Meher, 1973 (1) CWR 97 and Division Bench decision of this Court in Srimati Malati Mishra v. Srimati Basanti Devi, 1988 (1) OLR 520.
8. In Kunja Meher (supra), five brothers were co-sharers in respect of a Thikadari tenure. After vesting of the Estate, none of the co-sharers filed any application for fixation of fair and equitable rent in respect of the Sir lands in their possession within the prescribed period as provided in Section 8-A(3) of the Orissa Estates Abolition Act, and therefore, the lands vested in the State Government free from encumbrances. However, after the expiry of the prescribed period for filing claim, on the application of some of the co-sharers, Tahasildar settled the lands in their favour on payment of salami. It was held thatSir lands in dispute had vested in State free from encumbrances and the State settled the same again as an ordinary landlord owning lands with some of the co-sharers and two strangers on payment of salami and to such a settlement, the provisions of Orissa Estate Abolition Act have no application. It is further held that the settlement created new title in respect of the lands. As to the settlement in favour of some of the co-sharers enuring to the benefit of all the co-sharers, it has been held that if application for settlement of fair and equitable rent is not made by an ex-intermediary within the period prescribed in the Act, his right stood extinguished and the land vested absolutely in the State Government free from all encumbrances.
In Smt. Malati Mishra (supra) a Division Bench of this Court held that lease of land under the lease principles is not a settlement under the Orissa Estates Abolition Act, it being made on charging a salami and consequently in such contingency, the principle that a settlement in favour of one of the co-sharers would enure to other co-sharer will have no application. The settlement stands on the footing of an individual application to the owner for lease. It is further held that even though one of the conditions for entertaining an application is that the individual must be he who is entitled to file an application under the Orissa Estates Abolition Act, but the fiction that application by one and settlement in favour of him would enure to all cannot apply. It is categorically stated that from lease principles it cannot be inferred that lease of a land in favour of one of the co-sharers would enure to others.
In Bhagaban Panda (supra), in similar facts a contrary view appears to have been taken by another Division Bench of this Court. Of course in concluding paragraph it is stated that in peculiar facts and circumstances of that case, the benefit of settlement of the lands under the lease principles with one co-sharer (defendant No. 1) would enure to the benefit of the other co-sharers (plaintiffs) as well and such finding is consistent with the letter and spirit of the lease principles. The learnedJudges constituting the Division Bench in Bhagaban Panda noticed the earlier decision of this Court in Smt. Malati Misra (supra) and attempted to distinguish the same. In my opinion, the ratio in Bhagaban Panda should be confined to the facts of that case. Even otherwise, 1 am bound by the decision of the earlier Division Bench decision in Smt. Malati Misra.
9. The lease principles contained a set of rules complete by itself. These rules were framed and came into operation after the expiry of the prescribed period for exercising the right of ex-intermediaries to file claims for settlement of fair and equitable rent in respect of the lands in their khas possession. Since an expiry of the prescribed period, the right to prefer claim stood extinguished and the lands vested in the State Government free from all encumbrances. In the lease principles, it is specifically mentioned that to remove hardship. Government would grant fresh lease to the concerned persons on payment of salami equivalent to three years rent and this concession was extended for a particular period, which was extended from time to time thereafter. Supplementing the Lease Principles, the Board of Revenue in their letters dated 19-5-1964 and 11-9-1964 laid down detailed procedure to be followed by the revenue officers while implementing the lease principles. Thus, it was prescribed that an ex-intermediary may make the application duly verified, to the respective Tahasildars affixing court-fee stamp supported by an affidavit that they were not asking for advantage which they could not avail under the Act. On receipt of the application, the Tahasildar is to register the case and forward the application to the Revenue Inspector for enquiry and report about the truth or otherwise of the contents thereof. Simultaneously, the Tahasildar is to give public notice of the application inviting objections from persons interested within the prescribed period. Copies of the proclamation inviting objections are also to be sent to the office of the concerned Gram Panchayat and affixed in the Notice board of the Tahasildar and Revenue Inspector. There is also provision for announcement by beat of drums in the locality.
If after the prescribed period no objection is filed and Revenue Inspector certifies correctness of the application with reference to records and local inspection, then the land shall be settled with the applicant on fair and equitable rent assessed by Tahasildar whereupon the applicant is to pay prescribed salami and arrear of rent. Thus, a detailed procedure is prescribed to give effect to the lease principles. Since the land has meanwhile vested to the State Government, free from all incumbrances the settlement under lease principles is quite similar to an individual applying to an absolute owner for lease. Of course, the applicant must be an ex-intermediary. In such premises, I am inclined to hold that a lease in favour of some of the ex-intermediaries under the lease in favour of some of the principles cannot enure to the benefit of all ex-intermediaries, the demise being a fresh lease on payment of arrear rent and salami as specified in the lease principles.
10. The second ground of attack by the learned Counsel for the appellants is that Krushna, who figured as defendant No, 5 in the suit and respondent No. 6 in appeal, died during pendency of the appeal in the lower appellate Court and his legal representatives having not been brought on record, the appeal abated as a whole. As to whether non-substitution of the legal representative of a deceased respondent during pendency of an appeal, resulted in abatement of the appeal in its entirety, depended upon the nature of the case. The settled position of law is that if the nature of the case is such that in absence of the legal representatives of the deceased respondent, the appellate Court cannot hear the appeal as against the other respondents, then the appeal abates in toto. As to when a court cannot hear the appeal, the tests are well recognised. If in the event of the appeal being allowed as against the respondents before the court such decision will conflict with the decision of the trial Court as between the appellant and the deceased respondent thereby giving rise to two inconsistent decrees in the same litigation with regard to [he same subject-matter, then the appellate Court cannot hear the appeal and has to dismiss the same. Further, if the appellant could not havepreferred the appeal only against the respondents still before the Court, or if the decree against the surviving respondents cannot be successfully executed, then rise the appeal cannot be heard (sic). In the case at hand, both Batakrushna and Krushna were arrayed as defendants. Batakrushna alone filed written statement and contested the suit at the trial. He did not advance conflicting claim against Krushna. The suit was decreed against both and out of them Batakrushna alone carried the matter in appeal, which was allowed b> the lower appellate Court dismissing the claim of the plaintiffs. In other words, claim of the plaintiffs, against Batakrushna and Krushna was allowed in the trial Court but dismissed in appeal. In above facts, the decision of the lower appellate Court did not have the effect of creating two contradictory decrees.
11. The question may also be examined from another angle. In this case the decree of the trial Court proceeded on a ground common to all the defendants. To such a case, the provisions contained in Order 41, Rule 4 of the Code of Civil Procedure applied and any of the defendants could appeal from the whole decree and thereupon the appellate Court could reverse or vary the decree passed by the trial Court. It was not necessary for the appellant Batakrushna to implead the heirs and legal representatives of the deceased respondent, he being not a necessary party to the appeal, but had been impleaded merely as a pro forma respondent seeking no relief against him. In such circumstances, the appeal could not abate because of non-substitution of the legal representatives of the deceased respondent and could be heard at the instance of the appellant Batakrushna and the appellate Court could allow the appeal and reverse or vary the trial Court decree in its entirety notwithstanding such non-substitution. In the light of foregoing discussions it is held that the appeal did not abate as a whole. Thus, the second ground of attack is devoid of any force.
12. Applying the aforesaid principles of law to the facts of the case, it cannot be said that lease of the suit lands in favour of thedefendants enured to the benefit of the plaintiffs also. Consequently it is held that the impugned judgment is unassailable. In the result, the appeal is dismissed with costs. Hearing fee Rs. 200/-.