2026:HHC:44345 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 183 of 2012 Reserved on: 28.09.2026 Date of Decision: 09.10.2026 Prem Sagar ...Appellant Versus Mansa Ram & others …Respondents _____________________________________ Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the appellant : Mr V.K. Gupta, Advocate. For the respondents : Mr Naveen Kumar, Advocate, vice Mr Sanjay Bhardwaj, Advocate, for respondents No.1, 2, 3 and 5. Respondent No. 4 stated to have expired. Rakesh Kainthla, Judge Plaintiffs Mansa Ram etc. filed a civil suit before the learned trial Court seeking a declaration that they are owners of 1/3rd share in the suit land and a preliminary decree of partition be passed in their favour. The learned trial Court decreed the suit 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2026:HHC:44345 and passed a decree of declaration in the plaintiffs’ favour that they were owners of a 1/3rd share and were entitled to seek partition. The defendants Prem Sagar etc. and their legal representatives filed an appeal which was dismissed by the learned District Judge, Mandi, District Mandi, H.P. (learned appellate Court). 2. Being aggrieved, Prem Sagar, legal representative of Original Defendant Kailu, filed an appeal. Lachhmi Devi (original Plaintiff No. 4) died during the pendency of the appeal. Her legal representatives were not brought on record, and the statutory period for bringing the legal representatives expired. Hence, the parties were heard on the question of abatement. 3. Mr V.K. Gupta, learned counsel for the appellant, submitted that the appeal has abated in part and it can continue against the rest of the respondents. Therefore, he prayed that an appropriate order be passed regarding the abatement and the appeal be heard on merits. 4. Mr Naveen Kumar, learned vice counsel representing the respondents 1, 2, 3 and 5, submitted that the respondent no. 4 Lachhmi Devi was the original plaintiff No. 4. A decree was 3 2026:HHC:44345 passed in her favour declaring her to be 1/3rd share of the entire land. The appeal has abated in its entirety on failure to bring her legal representatives on record. Hence, he prayed that the present appeal be dismissed. He relied upon the judgment of the Hon’ble Supreme Court in Budh Ram and others vs. Bansi and others (2010) 11 SCC 476 in support of his submissions. 5. I have given a considerable thought to the submissions made at the bar and have gone through the records carefully. 6. It was laid down by the Hon'ble Supreme Court in Pandit Sri Chand and Ors. v. M/S. Jagdish Parshad Kishan Chand 1966 SC 1427, that the test to be applied whether the suit/appeal has abated in whole or in part is whether the success of suit/appeal may lead the Court to a decision which will conflict with the decision between the appellant and the deceased respondent, leading to the passing of mutually contradictory decrees, whether the appellant/plaintiff could not have brought the action for necessary relief against those respondents/defendants alone who are still before the Court or whether the decree against the surviving respondents would be 4 2026:HHC:44345 ineffective and could not be successfully executed. It was observed: 7. This Court has on more occasions than one considered whether, in circumstances similar to these, an appeal should stand abated in its entirety. In the State of Punjab v. Nathu Ram [(1962) 2 SCR 636], this Court explained the tests applicable in considering whether an appeal abates in its entirety when it has abated qua one of the respondents. The headnote of the case reads: “If the Court can deal with the matter in controversy so far as regards the rights and interest of the appellant and the respondents other than the deceased respondent, it has to proceed with the appeal and decide it; otherwise, it will have to refuse to proceed further with the appeal and therefore dismiss it. Ordinarily, the consideration which will weigh with the court deciding upon the question whether the entire appeal had abated or not will be whether the appeal between the appellants and the respondents other than the deceased respondent can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the court-and the tests to determine this have been described thus : (a) when the success of the appeal may lead to the court's coming to a decision which will be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the court and (c) when the decree against the surviving respondents, if the appeal 5 2026:HHC:44345 succeeds, be ineffective that is to say it could not be successfully executed.” (emphasis supplied) 7. It was held in Hemareddi v. Ramachandra Yallappa Hosmani, (2019) 6 SCC 756, that the Court can refuse to proceed with the appeal when the continuation of the appeal would result in passing of the conflicting decrees. It was observed: - 29. In this case, undoubtedly as we have noted, the appellant and his late brother sued as plaintiffs for a declaration that the first defendant was not the adopted son and he has no rights. They also sought a prohibitory injunction. The suit stood dismissed by the trial court. Let us take the converse position. Assuming that the suit was decreed by the trial court and an appeal was carried by the defendants, and pending the appeal by the defendants, if the late brother of the appellant had died and if the defendants had not impleaded the legal representatives of the late brother and the appeal abated as against him, would it then not be open to the appellant as the respondent in the appeal to contend that if the appeal was to be allowed to proceed in the absence of the legal representatives of his late brother and succeed, there would be an inconsistent decree. On the one hand, there will be a decree by the trial court declaring that the first defendant was not the adopted son and had no interest in the property qua the late brother of the appellant. On the other hand, the appellate court could be invited to pass a decree which should be to the effect that the first defendant was found to be the adopted son and had right and interest over the property, and a declaration to that effect would have to be granted. Would not the appellate court then have to hold that, though the decree in favour of the deceased brother of the appellant has become final, and under it, a declaration is granted that Defendant 1 is 6 2026:HHC:44345 not the adopted son and he has no right to claim the property, and there is an injunction against him that he is the adopted son, opposed to the decree which has been passed by the trial court which has attained finality. We would think that the appellate court would indeed have to refuse to proceed with the appeal on the basis that allowing the appeal by the defendants would lead to an appellate decree which is inconsistent with the decree which has become final as against the deceased brother of the appellant. 30. We would think that the situation cannot be any different, when we contemplate the converse of the aforesaid scenario which happens to be the factual matrix obtaining in this case. The right which was set up by the appellant along with his late brother was joint. They were members of the joint Hindu family consisting of their late father, late Govindareddi, their father Shriram Reddy and Basavareddi, who was none other than the husband of the second defendant. This is not a case where their claims were distinct. This is not the situation which was present in the case dealt with by the Constitution Bench under the land acquisition case. Therein, several persons came together and sought relief in one proceeding. We would think that this is not the position in this case. 31. It may be true that if a separate suit had been filed by the late brother and it had abated on his death, there would be no decree on merits and the suit would have abated. No doubt, it could be argued that even though the appellant and his late brother set up the case of joint right, it would only mean that they are co-owners of the property, and therefore, they had independent rights as co-owners which could be canvassed in two different proceedings, and therefore, the decree of the trial court dismissing the suit be treated as two different decrees — one decree against the appellant and the other against his late brother. Even then, the decree, which the High Court would be invited to pass, would be contradictory and 7 2026:HHC:44345 inconsistent with the decree as against the late brother of the appellant, which may not be permissible in law. 32. The decree, which the appellant, if successful in the appeal, would obtain, would be absolutely contrary to the decree which has also attained finality between his late brother and the defendants. They are mutually irreconcilable, totally inconsistent. Laying one side by side, the only impression would be that one is in the teeth of the other. In one, the suit is dismissed whereas in the other, the suit would have been decreed. 8. It was held by the Hon’ble Supreme Court in Goli Vijayalaxshmi & Ors. v. Yendru Sathiraju (dead) by LRs 2019(11) SCC 352 that the suit/appeal shall abate as against the deceased defendant where no application is made to bring on record the legal representatives of the deceased defendant within time. Where the decree is joint and indivisible and pursuing the appeal will result in mutually inconsistent contradictory decrees, the appeal will abate in its entirety. It was observed: “15. In this factual background, it will be apposite to first take note of the principles laid down in respect of abatement of appeals. Order 22 Rule 4(3) CPC specifies that a suit/appeal shall abate as against the deceased defendant where no application is made to bring on record the legal representatives of the deceased defendant within the time stipulated. Further, Order 22 Rule 9 CPC specifies the effect of abatement since it is clarified that no fresh suit is maintainable in respect of the same cause of action. 8 2026:HHC:44345 16. The primary role of the Court is to adjudicate the dispute between the parties and to advance substantial justice. Since the abatement results in denial of hearing on the merits of the case, the provision of abatement has to be construed within the strict parameters of the law. Abatement of suit for failure to move an application for bringing the legal representatives on record within the prescribed period of limitation is by operation of law, but once the suit has abated as a matter of law, though there may not have been passed on record a specific order dismissing the suit as abated, yet the legal representatives proposing to be brought on record or any other applicant proposing to bring the legal representatives of the deceased party on record would seek the setting aside of an abatement. 17. 17. The question arises in reference to the effect of abatement qua the appellants(plaintiffs or defendants), as the case may be, where the decree is joint and indivisible, the appeal against the other defendants will be proceeded with and in the event of an appeal to succeed, there will be two mutually inconsistent/contradictory decrees and more particularly when the suit has already been decreed qua one defendant and the suit would stand dismissed qua the other defendants, in such a given situation, tests have been laid down by this Court to determine as to whether or not to proceed with the appeal. 18. This Court, while adverting to Order 22 Rule 4 CPC against the other respondent in State of Punjab vs. Nathu Ram AIR 1962 SC 89, observed as under: - "6. The question whether a Court can deal with such matters or not will depend on the facts of each case, and therefore no exhaustive statement can be made about the circumstances when this is possible or is not possible. It may, however, be stated that ordinarily, the considerations which weigh with the Court in deciding upon this question are whether the appeal between the appellants and the respondents other than the deceased can be said to 9 2026:HHC:44345 be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the Court. The test to determine this has been described in diverse forms. Courts will not proceed with an appeal (a) when the success of the appeal may lead to the Court's coming to a decision which conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the Court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the Court and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective, that is to say, it could not be successfully executed." 19. The exposition of the Constitution Bench in Sardar Amarjit Singh Kalra (Dead) by LRs and others (supra) is as under: - "34. In the light of the above discussion, we hold: - (1) Wherever the plaintiffs or appellants or petitioners are found to have distinct, separate and independent rights of their own and for the purpose of convenience or otherwise, joined together in single litigation to vindicate their rights the decree passed by the Court thereon is to be viewed in substance as the combination of several decrees in favour of one or the other parties and not as a joint and inseverable decree. The same would be the position in the case of defendants or respondents having similar rights contesting the claims against them. 10 2026:HHC:44345 (2) Whenever different and distinct claims of more than one are sought to be vindicated in one single proceeding as the one now before us, under the Land Acquisition Act or in similar nature of proceedings and/or claims in the assertion of individual rights of parties are clubbed, consolidated and dealt with together by the Courts concerned and a single judgment or decree has been passed, it should be treated as a mere combination of several decrees in favour of or against one or more of the parties and not as joint and inseparable decrees. (3) The mere fact that the claims or rights asserted or sought to be vindicated by more than one are similar or identical in nature or by joining together more than one of such claimants of a particular nature, by itself would not be sufficient in law to treat them as joint claims, so as to render the judgment or decree passed thereon a joint and inseverable one. (4) The question as to whether in a given case the decree is joint and inseverable or joint and severable or separable has to be decided, for the purposes of abatement or dismissal of the entire appeal as not being properly and duly constituted or rendered incompetent for being further proceeded with, requires to be determined only with reference to the fact as to whether the judgment/decree passed in the proceedings vis-a-vis the remaining parties would suffer the vice of contradictory or inconsistent decrees. For that reason, a decree can be said to be contradictory or inconsistent with another decree only when the two decrees are incapable of enforcement or would be mutually self-destructive and 11 2026:HHC:44345 that the enforcement of one would negate or render impossible the enforcement of the other." 20. It was further considered in Budh Ram and Others Vs. Bansi and Others 2010(11) SCC 476 and the principle, therefore, that emerges is to test whether the judgment/decree passed in the proceedings vis-à-vis the remaining parties would suffer from the vice of contradictory or inconsistent decrees inasmuch as the two decrees are incapable of enforcement or would be mutually self-destructive and that the enforcement of one would negate or render impossible the enforcement of the other. 21. Applying the aforesaid principles, the facts of the instant cases on hand clearly manifest that the judgment and decree passed by the trial Court became final qua appellant no. 2 (defendant no. 2) upon abatement of the appeal qua him vide order dated 24th July 2009. If this Court would permit the remaining appellants to prosecute the appeals and, in the event they were to succeed, indisputably, there would be mutually inconsistent/contradictory decrees inasmuch as the suit has already been decreed qua appellant no. 2 (defendant no. 2) on the one hand and the suit would stand dismissed qua appellant nos. 1 & 3 (defendant nos. 1 & 3) or decreed against them in reference to schedule 'C’ property and not against appellant no. 2 (defendant no. 2) due to dint of cross-appeal filed by the plaintiff. 22. If the instant appeals were to be allowed, the same would result in a situation where the enforcement of the two decrees would be inexecutable, and the enforcement of one would negate or render impossible the enforcement of the other; and, to further simplify, the plaintiffs/respondents would be entitled to the share of the appellant no. 2(defendant no. 2) in the suit schedule 'A' and 'B' properties and there is no way he could enforce the same without negating the enforcement of the other decree viz. dismissal of the suit qua appellant nos. 1 & 12 2026:HHC:44345 3(defendant nos. 1 & 3) since the suit schedule properties each constitute a single unit and the same has not yet been demarcated and/or divided amongst the defendants and without such clear demarcation and delineation of the properties, indisputably, which has not yet happened, it would be impossible for the plaintiffs/respondents to enforce decree qua the appellant no. 2(defendant no. 2) without impinging on the rights of the appellant nos. 1 & 3(defendant nos. 1 & 3). 9. It was held in DDA v. Diwan Chand Anand, (2022) 10 SCC 428 that the appeal cannot continue where the right to sue does not survive to the surviving respondents alone. It was observed: - 30. After referring to the decision of this Court in Nathu Ram [State of Punjab v. Nathu Ram, AIR 1962 SC 89], in Venigalla Koteswaramma v. Malampati Suryamba [Venigalla Koteswaramma v. Malampati Suryamba, (2021) 4 SCC 246: (2021) 3 SCC (Civ) 238. See also Amarjit Singh Kalra v. Pramod Gupta, (2003) 3 SCC 272], it is observed by this Court in Venigalla Koteswaramma case [Venigalla Koteswaramma v. Malampati Suryamba, (2021) 4 SCC 246 : (2021) 3 SCC (Civ) 238] that the nature and extent of the abatement in a given case and the decision to be taken thereon will depend upon the facts of each case and, therefore, no exhaustive statement can be made either way and that the decision will ultimately depend upon the fact whether the decree obtained was a joint decree or a separate one. It is further observed that this question cannot and should not also be tested merely on the format of the decree under challenge or it being one or the manner in which it was dealt with before or by the Court which passed it. 13 2026:HHC:44345 31. Thus, as observed and held by the Court in Venigalla Koteswaramma case [Venigalla Koteswaramma v. Malampati Suryamba, (2021) 4 SCC 246 : (2021) 3 SCC (Civ) 238] : 31.1. The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. 31.2. If there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants (Order 22 Rule 2). 31.3. Where one of two or more defendants dies, and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. Where within the time limited by law no application is made under sub-rule (1) of Order 22 Rule 4, the suit shall abate as against the deceased defendant. 31.4. The provision of Order 22 shall also apply to the appeal proceedings. 32. As observed and held by this Court in the aforesaid decisions while considering whether the suit/appeal has abated due to non-bringing the legal representatives of 14 2026:HHC:44345 plaintiffs/defendants or not, the Court has to examine if the right to sue survives against the surviving respondents. Thereafter, the appellate court has to consider the question of whether, by not bringing the legal representatives of some of the defendants, the appeal could have proceeded against the surviving respondents. Therefore, the appellate court has to consider the effect of abatement of the appeal against each of the respondents in case of multiple respondents. 10. This position was reiterated in Suresh Chandra v. Parasram, 2025 SCC OnLine SC 1472 wherein it was observed: 5. The underlying principle in the aforesaid decisions is that in respect of the subject matter of a suit or a proceeding arising therefrom, the court cannot pass inconsistent decrees. In consequence, if, due to non- substitution of LRs of a deceased party, the decree qua the deceased party has attained finality by abatement of proceedings qua him, the Court cannot proceed further if a reversal or modification of the decree under appeal would result in conflicting or inconsistent decrees. Therefore, in such a situation, the appeal would abate in its entirety. 11. A similar view was taken in Budhi Ram (supra). 12. In the present case, the Court had passed a decree in favour of the original plaintiffs that they are the owners of 1/3rd share. Lachhmi Devi, one of the plaintiffs, has expired and her legal representatives have not been brought on record. The effect of not bringing on record her legal representatives is that the decree has become final qua her, which means that she 15 2026:HHC:44345 continues to be the owner of 1/3rd share of the suit land along with the other plaintiffs. If the appeal is continued, it can result in passing a decree that she is not the owner of 1/3rd share along with the other share of the other co-sharer, which is impermissible. The original defendants also could not have filed a civil suit against respondent no. 1, 2, 3 and 5 in the absence of Lachhmi Devi for seeking the right to their share because a co- sharer is a necessary party and her share could not have been reduced without hearing her. Hence, the tests laid down in Shri Chand (supra) are duly satisfied in the present case. 13. Consequently, the appeal would abate in whole and not in part; hence, the appeal is dismissed as having abated. 14. A copy of the judgment, along with the records of the learned Courts below, be sent back forthwith. (Rakesh Kainthla) Judge 09th October, 2026 (ravinder)