SA.440.2006 Judgment.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. SECOND APPEAL NO.440 OF 2006 APPELLANTS Original Plaintiffs On R.A. :- 1) Sanjay S/o Shridhar Shendre, aged about 42 years, occupation service 2) Smt. Prabhavati wd.o/ Shridhar Shendre, aged about 62 years, occupation household Dead thr LRs. (Nos. 1 and 2 both r/o Mahal, Ward Bhandara Tq. and Dist. Bhandara. 2 a) Smt. Sanjivani Prabhakar Dorle, aged about 62 years, r/o Plot no.12, Dr. Khankhoje Nagar, Manewada Road, Nagpur, Tah. And Dist. Nagpur; 2 b) Smt. Sunita Pandurang Narkar, aged about 60 years, r/o Plot no.12, Chakrapani Nagar, Hudkeshwar, Nagpur; 2 c) Smt. Sangita Rameshrao Deotale, aged about 58 years, r/o Plot no.62, Flat no.101, Tuljai-1, Dattatraya Nagar, Nagpur; 2 d) Smt. Smita Surjerao Bhongade, aged about 56 years, Flat no.401, Darshani Arcade, Durga Nagar, Manewada road, Nagpur, Tah. And dist. Nagpur; 3) Sukhdeo s/o Barkuji Shendre, aged about 62 years, 4) Vijay s/o Shamrao Shendre, aged about 38 years, Both 3 and 4 r/o Mahal Ward, Bhandra, Tq. Dist. Bhandara. 5) Tulsidas s/o Shamrao Shendre, aged Amended as per Court order dated 13.06.2023 2026:BHC-NAG:5129 SA.440.2006 Judgment.odt 2 about 33 years, occ. Business r/o Manewada Road, Nagpur, Tah. and Dist. Nagpur. 6) Liladhar s/o Shamrao Shendre, aged about 34 years, r/o Mahal Ward, Bhandara, Tq. and Dist Bhandara. 7) Smt Asha w/o Radheshyam Sonekar, aged about 42 years, occ. Household, r/o Dawadipar, Tah & Dist. Bhandara. Dead thr LRs. 7 a) Sau. Pooja Purushottam Sakure, aged about 44 years, r/o Near Lal Bahadur School, In front of M.S.E.B. office, Thane Road, Goregaon, Tah. Goregaon, dist. Gondia; 7 b) Sau. Vandana Yogeshwar Vaidya, aged about 42 years, r/o Ward No.3, Kuradi, Chowkitola, Post Kuradi, kTah. Goregaon, Dist. Gondia; 7 c) Shri. Suhas Radheshyamji Donekar, aged about 40 years, r/o Ward No.1, Near Durga Mandir, Davdipar, Post. Soni, Tah. Goregaon, Dist. Gondia; 7 d) Shri. Manoj Radheshyamji Donekar, aged about 41 years, r/o c/o Sau. Maithili Karanjekar, Plot no.57, Vyankatesh Colony, Phase-2, Khokarla, Tah. And Dist. Bhandara. 8) Smt. Kala d/o Shamrao Shendre, aged about 38 years, 9) Smt. Manjula wd/o Shamrao Shendre, aged about 62 years, Appellants (contd...) 10) Smt. Shilabai wd.o Murlidhar Bhangade, aged about 60 years, Amended as per Court order dated 13.06.2023 Deleted the name of appellant No.9 as per Court order dated 13.11.13 SA.440.2006 Judgment.odt 3 Nos. 6 to 10 all r/o Mahal Ward, Bhandara, Tah. and Dist. Bhandara. ..VERSUS.. RESPONDENTS (Original Defendants on R.A.) :- 1) Smt. Turjabai @ Purnabai wd/o Shripat Bhongade, aged about 62 years (dead) 2) Prabhakar Shripat Bhongade – since deceased through his legal representatives (i) Smt. Shakuntala wd.o/ Prabhakar Bhongade, aged 46 years, (ii) Pravin s/o Prabhakar Bhongade, aged 26 years, (iii) Mukesh s/o Prabhakar Bhongade, aged 25 years, (iv) Dipti d/o Prabhakar Bhongade, aged 21 years, All r/o Ganeshpur Tah and Dist. Bhandara. 3) Sudhakar s/o Shripat Bhongade, aged about 54 years, Dead thr LRs. 3A) LRs of R-3 Smt. Nirmala Sudam Bhongade, aged 58 years, household 3B) Bharat Sudam Bhongade, aged 37, occ. Business 3A and 3B r/o Ganeshpur, Bhandara, Tah. And dist. Bhandara. 3C) Leena Kamlakar Padole, aged 39 years, occ. Household 3D) Sweeti Narendra Mahajan, aged 35 occ. Household Amended as per order of this Hon’ble Court dated 01.04.2025 SA.440.2006 Judgment.odt 4 3C and 3D r/o Shivaji ward Ramtek, Tah. Ramtek, dist. Nagpur. 3E) Suchita Jitendra Yerne, aged 35, occ. Household, r/o Shriram Ward, Tumsar, dist. Bhandara. 4) Arun s/o Shripat Bhongade, aged 42 years, 5) Kishore s/o Shripat Bhongade, aged about 42 years, 6) Sau. Sunita w/o Ghanshyam Nagpure, aged 37 years, (Nos. 1 to 6 occupation business, all r/o Bhandara, Tah. and Dist. Bhandara.) Respondents (Contd...) 7) Smt. Panchfula w/o krushnaji Jatole, aged about 56 years, occ. Nil – r/o Mataji Ward Bheind TB Hospital, Gondia Tah. and Dist. Gondia. 8) Sau. Anita w/o Radheshyam Vaidya aged about 23 years, occ. – nil – r/o Gondia, Tah. and Dist. Gondiya. ------------------------------------------------------------------------------------------------------------------------------------ Mr. N.A. Vyawahare, Advocate for Appellants. Mr. Amol Mardikar, Advocate for Respondent Nos.2 to 8. ------------------------------------------------------------------------------------------------------------ CORAM : ROHIT W. JOSHI, J. DATE : 24/03/2026 JUDGMENT : 1. Heard. 2. The present appeal arises out of judgment and decree dated 08.03.2006 passed by the learned 2nd Ad-hoc Additional SA.440.2006 Judgment.odt 5 District Judge, Bhandara, in Regular Civil Appeal No.31 of 2004 whereby the learned First Appellate Court has reversed the judgment and decree dated 06.02.2004 passed by the learned 2nd Joint Civil Judge Senior Division, Bhandara, in Regular Civil Suit No.157 of 2000 (Old Special Civil Suit No.44 of 1990). The appellants in the present second appeal are original plaintiffs and respondents are legal representatives of original defendant. 3. The plaintiffs had filed a suit for possession against the defendant, deceased Shripat Jairam Bhongade, with respect to the suit property, which is a house bearing No.128, situated at Nehru Ward, Ganeshpur, Bhandara. The plaintiffs have filed the suit on the basis of ownership. 4. It is the case of the plaintiffs that the suit house was initially owned by one Panchamdas, who sold the same to one Shivram Bhongade vide registered sale deed dated 19.04.1958. The suit house was purchased by late Bhurkabai Barkuji Shendre from the said Shivram vide registered sale deed dated 08.08.1980. Bhurkabai expired on 21.11.1980. The plaintiff Nos.1 to 3 are sons and plaintiff Nos.10 is daughter of Bhurkabai. The plaintiff Nos.4 to 8 are children of Shamrao, deceased son of Bhurkabai and plaintiff No.9 is widow of said Shamrao. The plaintiffs thus filed the SA.440.2006 Judgment.odt 6 suit as co-owners of the suit house. The case of the plaintiffs is that the defendant was inducted in the suit house as a gratuitous licensee by Bhurkabai on his request. The plaintiffs contend that having received possession of the suit house, the defendant started raising quarrel with the plaintiff No.10 and claimed ownership over the suit house. 5. The defendant filed written statement opposing the suit. The defendant came up with a case that his father, late Jairam and Shivram were real brothers. It is his case that his father Jairam had also contributed amount towards sale consideration of purchase of suit property which was purchased in the name of Shivram alone. The defendants denied that Shivram has sold the suit property to Bhurkabai. The defendants also filed counter claim for partition and separate possession claiming half share in the suit property. 6. The learned trial Court decided the suit and counter claim vide judgment and decree dated 06.02.2004. The learned trial Court has held that plaintiffs had proved their ownership over the suit property and were entitled to decree for possession. The claim of defendants with respect to ownership and partition was rejected by dismissing the counter claim. 7. It will be pertinent to mention that the plaintiff SA.440.2006 Judgment.odt 7 No.2/Narayan had expired while the civil suit was pending, however, his legal representatives were not brought on record. 8. Being aggrieved by the judgment and decree passed by the learned trial Court, the defendants preferred an appeal, being Regular Civil Appeal No.31 of 2004. The learned First Appellate Court held that since legal representatives of deceased plaintiff No.2 were not brought on record in the civil suit, the suit stood abated and the decree passed subsequently was a nullity in the eyes of law. It is held that decree is a joint decree and the suit abated in its entirety. The judgment and decree preferred by the learned First Appellate Court is challenged in the present second appeal. 9. Vide order dated 08.03.2007, the appeal came to be admitted on the following substantial question of law :- “Whether the appellate Court was justified in reversing the decree passed by the trial Court solely on the ground that the suit filed by the plaintiffs abated on the death of one of the plaintiffs, Narayan, and his legal heirs were not brought on record ?” 10. Mr. Nitin Vyawahare, learned Advocate for the appellants contends that in a suit for possession filed against a licensee, all the co-owners of the property need not file the suit together and that suit filed by one of the co-owners is also SA.440.2006 Judgment.odt 8 maintainable. The contention of Mr. Vyawahare is that in view of such legal principle, the suit did not abate in its entirety in view of failure on the part of the plaintiffs to bring legal representatives of deceased plaintiff No.2 on record. The learned Advocate contends that the suit was maintainable even after demise of plaintiff No.2, although his legal representatives were not brought on record. 11. Per contra, Mr. Amol Mardikar, learned Advocate for the respondent Nos.2 to 8/the legal representatives of defendant contends that abatement of suit against plaintiff No.2 has effect of dismissal of the suit not only qua the deceased plaintiff No.2 but all the plaintiffs. Mr. Mardikar, contends that in the event, decree for possession is maintained, the same will have effect of bringing into existence two contrary decrees in the same suit between the same parties, namely decree of dismissal of suit on account of abatement against plaintiff No.2 and decree granting relief of possession to other plaintiffs. Mr. Mardikar, contends that two contrary and self- contrary decrees cannot be allowed to operate. He contends that the plaintiffs filed the suit as joint owners and therefore, the suit abated in its entirety. Mr. Mardikar, also argues that the legal principle that a co-owner can institute a suit for possession against trespasser, licensee or lessee will not be applicable in the present case, since the SA.440.2006 Judgment.odt 9 defendant is also claiming to be co-owner of the suit property. He has placed reliance on judgment of the Hon’ble Supreme Court in the case of Suresh Chandra (deceased) through LRs ..vs.. Parasram and others1. 12. In the case of Suresh Chandra (Supra), relied by Mr. Mardikar, the plaintiffs had filed a suit for possession based on title. They claimed that defendants were in occupation of the property as tenants. The defendants/tenants denied the tenancy and claimed title in themselves. The suit was dismissed. However, first appeal was allowed. The defendants preferred second appeal before the High Court. During the pendency of the second appeal, one of the appellants/defendants expired. Intimation about his death was given, however, his legal representatives were not brought on record. The High Court declared that the appeal stood abated. In this backdrop, applications were filed seeking to set aside the abatement and to bring legal representatives of deceased appellant on record. The applications were rejected by the High Court. The said orders were subject matter of challenge before the Hon’ble Supreme Court. The Hon’ble Supreme Court framed two questions to be answered; first, as regards correctness of the order refusing to condone the 1 2023 SCC Online SC 1472 SA.440.2006 Judgment.odt 10 delay and seting aside the abatement and second, with respect to consequence of abatement i.e. as to whether the appeal abated in its entirety or only against the deceased appellant. First question was answered holding that the High Court was justified in rejecting the application for setting aside abatement. We are, however, concerned with the second question dealt with by the Hon’ble Supreme Court. The Hon’ble Supreme Court has referred to the relevant statutory provisions of Order XX Rule 3, 4 and 10 of the Code of Civil Procedure and has dealt with several decisions on the aspect of partial abatement and complete abatement of appeal in cases of failure to implead legal representatives of one of the appellants or the respondents on record. The Hon’ble Supreme Court has reiterated the legal principle that if abatement of an appeal against one of the appellants or respondents results in bringing into existence two contrary decrees which cannot co-exist, then the appeal must be treated as abated in its entirety. The Hon’ble Supreme Court has held that when an appeal abates, the judgment and decree impugned in the appeal becomes final against or in favour of the deceased appellant or deceased respondent, as the case may be. 13. In the facts of the said case, the Hon’ble Supreme Court SA.440.2006 Judgment.odt 11 arrived at a conclusion that the First Appellate Court had accepted the ownership of plaintiffs and had held that the defendants were tenants. The defendants had filed second appeal. The defendant/appellant No.2 died and his legal representatives were not brought on record in second appeal. It was found that on abatement of appeal against appellant No.2/original defendant No.2, the appeal certainly abated against him, as a consequence of which, decree passed by the learned First Appellate Court holding the respondents/original plaintiffs to be owners and appellants/original defendants to be tenants assumed finality against the deceased appellant/defendant No.2. It is held that in the event, the second appeal is allowed, the effect would be that the defendant No.2/appellant No.2 will be held to be tenant whereas the other appellants/original defendants who claim right of ownership over the same ground will be held to be owners. The Hon’ble Supreme Court has therefore held that two self-contrary decrees would come into existence if the second appeal is allowed. In view of this consideration, the Hon’ble Supreme Court held that the second appeal abated in its entirety and not only against the appellant/original defendant No.2. 14. In the present case, plaintiff No.2 had expired while the SA.440.2006 Judgment.odt 12 civil suit was pending before the learned trial Court. There is no decree in favour of or against the plaintiff No.2. Abatement of suit qua plaintiff No.2 does not result in bringing into existence any decree in his favour or against him. It is well settled that dismissal of suit in default or for want of prosecution or for any reason without decision on merits is not a decree. 15. A distinction is required to be made in cases where a party expires while the suit is pending before the learned trial Court and his legal representatives are not brought on record resulting in abatement of the suit against him and cases where legal representatives are not brought on record in an appeal arising out of judgment and decree. In the former case there is no decree which comes into existence upon abatement. As against this, in the later case i.e. the case of abatement of appeal, the decree impugned in the appeal automatically operates qua the deceased appellant or respondent if the legal representatives are not brought on record within the stipulated time frame. This results in a possibility of two self-contrary decrees coming into existence. However, in case abatement of a civil suit, there is no question of any decree attaining finality. 16. It must however be clarified that in a given case even a SA.440.2006 Judgment.odt 13 suit may abate in its entirety of the plaintiff or defendant who expires is a necessary party to the suit and the suit cannot be continued in the absence of legal representatives. Like in a suit for partition, if one of the co-owners expires resulting in abatement, the abatement will be completed and not partial. 17. Now the issue as to maintainability of the suit after demise of plaintiff No.2 during the pendency of the civil suit before the learned trial Court and failure to bring his legal representatives on record needs to be examined. 18. It is obvious that the suit had abated as against the plaintiff No.2 since he died while the civil suit was pending and his legal representatives were not brought on record. 19. The plaintiff No.2 filed the suit as one of the co-owners of the suit property with other co-owners. The issue that needs to be examined as to whether the suit could be continued by the other plaintiffs/co-owners. 20. In this regard, it will be appropriate to refer to judgment of the Hon’ble Supreme Court in the case of Siravarapu Appa Rao and others ..vs.. Dokala Appa Rao2,. In the said case, the plaintiffs/appellants before the Supreme Court who were brothers 2 In Civil Appeal No.7145/2022 (Arising out of SLP (C) No.26284/2017, decided on 11.10.2022 SA.440.2006 Judgment.odt 14 and sister, jointly filed a suit for declaration of title and recovery of possession against the defendant/respondent. The sister who was one of the plaintiffs expired while the civil suit was pending and her legal representatives were not brought on record. The suit abated against her. The learned trial Court however decreed the suit for possession in favour of the remaining the plaintiffs/co-owners. The defendant challenged the decree which was allowed on the ground that the suit had abated in its entirety, since the decree for possession was jointly sought by all plaintiffs. Second appeal preferred by the plaintiffs was also dismissed on the same ground that the civil suit abated in its entirety. In this backdrop, the plaintiffs approached the Hon’ble Supreme Court. The Hon’ble Supreme Court allowed the appeal holding that the suit did not abate in its entirety upon demise of one of the plaintiffs/co-owners. The appeal was remanded to the learned First Appellate Court for deciding the same on merits in accordance with law. 21. It must be stated that the legal position that one of the co-owners can maintain a suit for possession against a tenant or licensee or trespasser cannot be disputed. Legal position in this regard is no longer res integra as can be seen from a catena of judgments of the Hon’ble Supreme Court and almost all High SA.440.2006 Judgment.odt 15 Courts on the point. The decision in the cases of Sri Ram Pasricha ..vs.. Jagannath and others3, and India Umbrella Manufacturing Co. and others ..vs.. Bhagabandei Agarwalla (Dead) by LRs Savitri Agarwalla (Smt) and others4, are relied upon by the learned Advocate for the appellant. 22. Learned Advocate for the respondent Mr. Mardikar in fairness, does not dispute the said legal position. However, he argues that ratio of the said judgments will not be applicable to the facts of the present case since all the co-owners had filed the suit and upon demise one of them viz., plaintiff No.2, his legal representatives were not brought on record. 23. The contention of Mr. Mardikar, cannot be accepted since dismissal of suit against plaintiff No.2 will have the effect of continuation of the suit by other co-owners, which is legally permissible. The suit will stand dismissed only against plaintiff No.2 and not against other plaintiffs who also are competent to continue the suit for on behalf of all the co-owners. It needs to be reiterated that when a suit abates before the trial Court on account of failure to bring legal representatives of one of the plaintiffs on record, it does not result in any decree attaining finality against the deceased 3 (1976) 4 SCC 184 4 (2004) 3 SCC 178 SA.440.2006 Judgment.odt 16 plaintiff, since no decree is passed. In case of appeal, however, there is a decree which is already passed, which attains finality against the deceased appellant or in favour of deceased respondent, as the case may be, in case legal representatives are not brought on record resulting in abatement of appeal qua such appellant or respondent. 24. Mr. Mardikar also raises a contention that the since the defendant in the present case did not admit his status as licensee and claimed to be owner, the ratio of the aforesaid judgments which hold that a co-owner can file a suit against lessee, licensee or trespasser without joining other co-owners as plaintiffs will not be applicable to the facts of the present case. This contention is also liable to be rejected since the defence is rejected on merits and it is held that the plaintiffs are owners of the suit property. Their case that the defendant was inducted as a licensee is accepted. It will be pertinent to mention that although the learned First Appellate Court has allowed the appeal of the defendants on the ground that the suit had abated, finding with respect to ownership of plaintiffs is recorded in the affirmative and it is held that the defendant failed to prove that he was co-owner of the suit property having half share therein along with the plaintiffs. 25. In view of the above the substantial question of law is SA.440.2006 Judgment.odt 17 answered in favour of the appellants/original plaintiffs and against the respondents/defendants. Second appeal is allowed in the following terms:- i) The Judgment and decree dated 08.03.2006 passed by the learned 2nd Ad hoc Additional District Judge, Bhandara, in Regular Civil Appeal No.31 of 2004 is quashed and set aside; ii) Judgment and decree dated 06.02.2004 passed by the learned 2nd Joint Civil Judge Senior Division, Bhandara in Regular Civil Suit No.157 of 2000 (Old Special Civil Suit No.44 of 1990) is confirmed; iii) Costs to follow the cause. (ROHIT W. JOSHI, J.) C.L. Dhakate