( 2026:JHHC:25043 ) 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Second Appeal No. 468 of 2015 1. (a) Sushila Mahato daughter of late Giribala Mahatani wife of Sri Kalipada Mahato, resident of village Chipingdih, P.O. Bamundiha, P.S. Barabazar, District-Purulia, West Bengal 1.(b) Krishnapada Mahato, 1.(c)Balram Mahato 1(d) Jaga Landhu Mahato 1.(e) Bishwanath Mahato 1(b) to 1(e) all sons of late Giribala Mahatani and late Chandrakanto Mahato All are residents of village and P.O. Bara Chirka, P.S. Baram, District -East Singhbhum 2.(a) Dipali Mahato,( 45 years) daughter of late Bhutesh Chandra Mahato, wife of Sri Dhirendra Nath Mahato, resident of village Nengdih, P.O., P.S. Chandil, District-Seraikella Kharsawan 2.(b) Anjali Mahato ( 42 years) daughter of late Bhutesh Chandra Mahato, wife of late Lal Mohan Mahato, 2.(c) Gouri Rani Mahato, (39 years) daughter of late Bhutesh Chandra Mahato, wife of Sri Gagan Chandra Mahto, Both residents of village P.O. & P.S. Gamaria, District-Seraikella Kharsawan 2(d) Shobha Rani Mahato (36 years) daughter of late Bhutesh Chandra Mahato, wife of Sri Lalit Mahato, resident of village and P.O. Kapali, P.S. Chandil, District-Seraikella Kharsawan 3. Gopesh Chandra Mahato (Died) 4.(a). Ashish Kumar Mahato, 4.(b)Kajal Kumar Mahato, 4 (c) Ajay Kumar Mahato, 4.(d) Ashok Kumar Mahato, All sons of Kashi Nath Mahato 4(e) Jayanti Mahato wife of late Kashi Nath Mahato All residents of village Rusunia, P.O. Sima Gunda, P.S. Chandil, District- Seraikella Kharsawan 4.(f) Kiran Mahato, daughter of late Kashi Nath Mahato wife of Sri Ramesh Chandra Sinha, resident of village Pilid P.O. Situ, P.S. Ichagarh, District-Seraikella Kharsawan ………………….. Appellants -Versus- 1. Satish Chandra Mahato, son of late Suresh Chandra Mahato (Abates v.o.d. 20.02.2023) 2. Most. Khandubala Mahatani, wife of late Jagadish Mahato 3. Smt. Rebati Mahatani, daughter of late Jagadish Mahato 4. Jamini Mahato ((Abates v.o.d. 20.02.2023) 5. Jamuna Mahato 6. Gangadhar Mahato(Abates v.o.d. 20.02.2023) All serial no. 4 to 6 are sons of late Suresh Chandra Mahato 7. Smt. Rosna Mahatani, wife of late Suresh Chandra Mahato ((Abates v.o.d. 20.02.2023) 8. Nirmala Mahatani 9. Sabitri Mahatani Both serial 8 and 9 are daughter of late Suresh Chandra Mahato All residents of village Rusunia, P.O. Simagunda, P.S. Chandil, District- ( 2026:JHHC:25043 ) 2 Seraikella Kharsawan . …………Respondents --------- CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI --------- For the Appellants : Mr. Harendra Kumar Mahato, Advocate : Mrs. Ahalya Mahato, Advocate : Ms. Jyotsna Mahato, Advocate For the Resp. Nos. 2 and 5 : Mr. Saibal Mitra, Advocate 10/Dated: 19.08.2026 Heard Mr. Harendra Kumar Mahato, learned counsel on behalf of the appellants and Mr. Saibal Mitra, learned counsel for the respondent nos. 2 and 5. 2. This second appeal has been filed being aggrieved and dissatisfied with judgment dated 26.06.2015 decree signed on 07.07.2015 passed in Title Appeal No. 03 of 2010 by the learned District Judge-I, Seraikella Kharsawan by which the appeal has been dismissed and the judgment dated 09.12.2009 decree signed on 23.12.2009 passed in Title Suit No. 17 of 2000 by learned Sub-Judge-II Seraikella has been confirmed. 3. Mr. Harendra Kumar Mahato, appellants/plaintiffs submits that appellant no.3 has died but no substitution petition has been filed and in view of that this appeal is already abated so far appellant no.3 is concerned. He submits that appellant nos. 1, 2 and 4 have also left for their heavenly abode however, they have been substituted by their legal heirs and successors. He also submits that defendants/respondents nos. 1, 4, 6 and 7 have also left for their heavenly abode and appeal against them have already been abated in the light of order dated 20.02.2023. He next submits that respondent nos. 2, 3, 5, 8 and 9 are surviving. 4. Learned counsel for the appellants/plaintiffs submits that Title Suit No. 17 of 2000 has been instituted by the appellants/plaintiffs for declaration that plaintiffs are entitled to withdraw 2/3rd of the compensation amount separately from saving bank account no. 7999 which is jointly deposited in the ( 2026:JHHC:25043 ) 3 Bank of India at Nimdih Branch. The suit is valued for Rs. 2,29,820.68 and fixed court fee of Rs. 250/- have been paid for the declaratory suit. 5. Mr. Saibal Mitra, learned counsel for the respondent nos. 2 and 5 submits that in the substitution matter notice has been issued and pursuant to that he has filed vakalatnama on behalf of respondent nos. 2 and 5 however, second appeal is not admitted as yet. 6. The case of the appellants/plaintiffs as recorded in the judgment of the learned trial court is that the lands mentioned in schedule 'B' of the plaint belongs to the common ancestor of plaintiffs and defendants late Bhola Nath. It is also a fact that there was an amicable partition amongst the said common ancestor and his successor, long before last Revisional Survey in 1958-59 for which Schedule land of the plaint with some other lands fell, the share of Bhole Nath Mahato. Bhola Nath Mahato died Before Revisional Survey living behind his three sons namely Chandra Kanta, Suresh and Umesh and they all possess the lands as being legal heirs and successor of Late Bhola Nath Mahato, Chandra Kanta and his wife died living his only daughter Giribala Mahtani, plaintiff No.1. Suresh Chandra died leaving behind his wife Roshna Mahatani Defendent No.7 and his five sons namely Satish Chandra Mahato (Dft.No.1). Late Jagdish represented by his successor wife Kandu Bala Mahatani (Dft.No.2) and Smt. Raibati Mahatani, daughter (Deft.No.3). Jamini Mahato (Deft.No.4), Jamuna Mahato (Deft-No.5). Gangadhar Mahato (Deft.No.6) and two daughters namely Nirmala Mahatani (Deft.No.8) and lastly Savitri Mahatani(Deft.No.9). And lastly Late Umesh Chandra is represented by his three sons Bhutesh Chandra Nahato, Gopesh Chandra Mahato and Kashinath Mahato (plaintiff No.2 to 4). The further case of the plaintiffs are that the schedule-B lands of the plaint were acquisitioned by the Government in Swarnrekha Dam Project and awards as per Schedule-C of the plaint, has been prepared jointly in the names ( 2026:JHHC:25043 ) 4 of descendants of common ancestor, without specification of any share or interest of the respective co-sharers and notice u/s 12(2) of the land Acquisition Act for final award has been jointly served upon them but the co-sharers awardees could not and it did not consent to receive the said compensation money in proportionate share and as such the compensation amount payable for the schedule-B lands has been deposited in the bank of India at Nimdih Branch, in the joint saving bank account jointly since 15-05-99. It was further case of the plaintiffs that they have been consistingly trying to convince to withdraw the said amount and divide the same as per legal claim for which they are entitled in law. It is also mentioned that the plaintiffs and defendants are governed by Mitakahara School of Hindu Law and their shares are divided accordingly. It was also the case of the plaintiffs that one of the depositors Santosh Bala Mahtani, mother of Giribala Mahtani (plaintiff No.1) died issueless leaving behind no other heirs and successor except plaintiff No.1 and Jagdish Mahato has also died leaving behind defendant No.2 and 3 as his heirs and legal representative. It was also the case of the plaintiffs that the plaintiff No.1 claimed 1/3rd share and plaintiff Nos.2,3,4 together entitled for 1/3rd of deposited money but the defendants flatly refused to draw the amount jointly and hence this suit. 7. The case of the respondents/defendants as recorded in the judgment of the learned trial court is that the suit is not maintainable in its present form and no cause of action arises for the suit. It was also the case that the the suit is barred by waver, acquiescence. It was also the case the suit is not properly valued as interest of the deposited amounts have been over-looked. It was also the case of the defendant that the plaintiffs have not prayed for decree of the suit and as such no relief of decree can be granted. It ( 2026:JHHC:25043 ) 5 was also the case of the defendants that the lands of the common ancestor late Bhola Nath Mahato have not been partitioned by metes and bounds by the parties amicably or by the court, rather they are possessing according to their convenience. It was also the case of the defendants that there have been separate Khatiyan made out of the property of the Late Bhola Nath Mahato and some of the lands recorded jointly and some are separately. It was the specific case of the defendants that the lands of R.S. Khata No.16, 17, 18, 19 and 20 of village Rusunia have been acquired by the state government and the recorded tenants long have got the compensation amount to the exclusion of the defendants and the defendants claim the compensation amount and plaintiffs assured to gave one share of the compensation amount to the defendants which on demand they refused to pay and as such the plaintiffs are in better position to appropriate larger amount of compensation to the exclusion of the defendants out of the joint lands and the recorded in the separate names is in correct for which the defendants will take necessary step in the court on time. It was also the case of the defendants that a separate title suit between the parties being T.S. No.18 of 2000 is pending in the court of Munsif, Seraikella in respect of some of the lands of the Bhola Nath Mahato and the result of that suit is likely to affect the result of the present suit and therefore the plaintiffs have no merit in the case and they are not entitled to get any relief and suit is liable to be dismissed. 8. 8. To decide the suit, the learned trial court has framed eight issues and the learned trial court has been pleased to dismiss the suit by judgment dated 09.12.2009. Aggrieved with that the appellants/plaintiffs have preferred Title Appeal No. 03 of 2010 which was dismissed by judgment dated 26.06.2015 affirming the judgment of the learned trial court. 9. It has been recorded in order dated 20.02.2023 that the appeal against the defendants/respondents nos. 1, 4, 6 and 7 have already been ( 2026:JHHC:25043 ) 6 abated and in the facts and circumstances of the present case, if the second appeal is admitted against surviving respondents, it will amount to decree in two parts where the suit property is one and jointness is another. Reference made by made to the case of “Sunkara Lakshminarasamma (Dead) by legal representatives v. Sagi Subba Raju and others”; [(2019) 11 SCC 787]. Paragraphs 11, 12, 13 and 14 of the said judgment are quoted herein below: “11. In any event, Shri Thomas P. Joseph, learned Senior Advocate appearing on behalf of the respondents is justified in contending that these appeals are not maintainable since a number of defendants against whom the relief is sought/claimed have either been deleted from the array of parties, or are dead. The legal representatives of such deceased defendants have not been brought on record. Even before this Court, Respondent No. 7 (D-8), Respondent 8 (D-9), Respondent 9 (D-10) and Respondent 11 (D-13) in Civil Appeal No. 4382 of 2016 arising out of SLP (C) No. 20376 of 2004 have died. Their legal representatives have also not been brought on record. It is relevant to note here itself that Defendants 4, 6, 36, 50, 54, 58, 67, 69, 73, 77, 82, 92, 93, 113, 120 and 127 expired during the pendency of the matter before the trial court in OS No. 97 of 1984. So also, Defendants 20, 53, 64 and 118 have also died and their legal representatives have also not been brought on record. 12. Order 22 Rule 4 CPC lays down that where within the time limited by law, no application is made to implead the legal representatives of a deceased defendant, the suit shall abate as against a deceased defendant. This rule does not provide that by the omission to implead the legal representative of a defendant, the suit will abate as a whole. If the interests of the co-defendants are separate, as in the case of co-owners, the suit will abate only as regards the particular interest of the deceased party. In such a situation, the question of the abatement of the appeal in its entirety that has arisen in this case depends upon general principles. If the case is of such a nature that the absence of the legal representatives of the deceased respondent prevents the court from hearing the appeal as against the other respondents, then the appeal abates in toto. Otherwise, the abatement takes place only in respect of the interest of the respondent who has died. The test often adopted in such cases is whether in the event of the appeal being allowed as against the remaining respondents there would or would not be two contradictory decrees in the same suit with respect to the same subject-matter. The court cannot be called upon to make two inconsistent decrees about the same property, and in order to avoid conflicting decrees the court has no alternative but to dismiss the appeal as a whole. If on the other hand, the success of the appeal would not lead to conflicting decrees, then there is no valid reason why the court should not hear the appeal and adjudicate upon the dispute between the parties. 13. In the matter on hand, the absence of certain defendants who have been deleted from the array of parties along with the absence of legal representatives of a number of deceased defendants will prevent the court from hearing the appeals as against the other defendants. We say so because in the event of these appeals being allowed as against the remaining defendants, there would be two contradictory decrees in the same suit in respect of the same subject-matter. One decree would be in favour of the defendants who are deleted or dead and whose legal representatives have not been brought on record; while the other decree would be against the defendants who are still on record in respect of the same subject-matter. The subjectmatter in the suit is the validity of the two wills. The courts including the Division Bench of the High Court have consistently held that the two wills are proved, and thus Veeraswamy being the beneficiary under the two wills had become the absolute owner of the suit properties in question. Such decree has attained finality in favour of the defendants who are either deleted or dead and whose legal representatives ( 2026:JHHC:25043 ) 7 have not been brought on record. In case these appeals are allowed in respect of the other defendants, the decree to be passed by this Court in these appeals would definitely conflict with the decree already passed in favour of the other defendants. 14. As mentioned supra, the court cannot be called upon to make two inconsistent decrees about the same subject-matter. In order to avoid conflicting decrees, the court has no alternative but to dismiss the appeals in their entirety.” 10. In view of the above there are concurrent findings of the learned trial court as well as appellate court on the point of distribution of said amount. 11. Admittedly defendants/respondents nos. 1, 4, 6 and 7 have left for their heavenly abode inspite of that till date no substitution petition has been brought on record by the appellants and the second appeal has been filed on 28.08.2015. 12. On the point of abatement order dated 20.02.2023 speaks for itself. Admittedly, there is dispute of the amount deposited in the account. There are jointness and in the case of such nature in absence of legal representatives of deceased/respondents, it will not be proper to hear the appeal as against other respondents and in view of that the appeal requires to be abated in totality, as held by the Hon’ble Supreme Court in Sunkara Lakshminarasamma (supra). Accordingly, the Court is not required to call upon to make two inconsistent decrees about the same subject-matter. In order to avoid conflicting decrees, the Court has no alternative but to dismiss the appeal in its entirely. 13. In view of above, the second appeal fails not only on the ground of non-maintainability but also on merits considering that there are concurrent findings of two courts. Accordingly, this second appeal is dismissed. Pending I.A, if any, stands disposed of. ( Sanjay Kumar Dwivedi, J.) Dt. 19.08.2026 Satyarthi/-