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CGHC010094522018 2026:CGHC:44264

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

Judgment Reserved on : 22.09.2026

Judgment Pronounced on : 13.10.2026

Judgment Uploaded (Full) on : 13.10.2026

FA No. 201 of 2018

[Arising out of judgment and decree dated 13.02.2018, passed by the

Addl. District Judge, Dhamtari (CG) in Civil Suit No.629A/2012 (Pratej

Singh and others v. Savarnkaur and others)]

1 - Savarnkaur Wd/o Avatarsingh Bhabra Aged About 74 Years R/o

Bhabra Building, Ratnabandha Chowk, Bastar Road, District Dhamtari,

Chhattisgarh, District : Dhamtari, Chhattisgarh

2 - Lovely Kaur @ Jaspalkaur (Not Mention In Judgment) Wd/o

Gunjeetsingh @ Banti Bhabra Aged About 48 Years R/o Bhabra

Building, Ratnabandha Chowk, Bastar Road, District Dhamtari,

Chhattisgarh, District : Dhamtari, Chhattisgarh

3 - Taranraj Singh S/o Late Gunjeetsingh Bhabra Aged About 25 Years

R/o Bhabra Building, Ratnabandha Chowk, Bastar Road, District

Dhamtari, Chhattisgarh, District : Dhamtari, Chhattisgarh

4 - Rashraj Singh S/o Late Gunjeet Singh Bhabra Aged About 23 Years

R/o Bhabra Building, Ratnabandha Chowk, Bastar Road, District

Dhamtari, Chhattisgarh, District : Dhamtari, Chhattisgarh

5 - Gurmeet Kaur Dhanai W/o Narendrapal Singh Aged About 51 Years

R/o Nehru Nagar, Durg, District Durg, Chhattisgarh, District : Durg,

Chhattisgarh

5.1 - (A) Smt. Nadira @ Rinu Kaur Wd/o Late Satvindar Singh Aged

About 46 Years R/o C/o Ganpat Vashnik Plot No. 419, Hanuman

Mandir Gali Gid Chowk, Sanyog Nagar, Nagpur-26, Post Uppalwadi,

District Nagpur (Maharashtra), District : Nagpur, Maharashtra

5.2 - (B) Ku. Minor Raunshi Kaur D/o Late Satvindar Singh Aged About

17 Years Guardianship Of Smt. Nadira @ Rinu Kaur Wd/o Satvindar

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Singh Bhabra, R/o C/o Ganpat Vashnik Plot No. 419, Hanuman Mandir

Gali Gid Chowk, Sanyog Nagar, Nagpur-26, Post Uppalwadi, District

Nagpur (Maharashtra), District : Nagpur, Maharashtra

... Appellants

Versus

1 - Pratej Singh (Died) Through Lrs As Per Honble Court Order Dated

06-08-2025.

1.1 - Raj Bhabra W/o Late Pratej Singh Aged About 70 Years R/o

Bhabra Building, Ratanabhandha Chowk, Dhamtari, Bastar Road,

District- Dhamtari, Chhattisgarh

1.2 - Shailvinder Kaur Bhabra D/o Late Pratej Singh Aged About 42

Years R/o Bhabra Building, Ratanabhandha Chowk, Dhamtari, Bastar

Road, District- Dhamtari, Chhattisgarh

1.3 - Amandeep Singh Bhabra S/o Late Pratej Singh Aged About 40

Years R/o Bhabra Building, Ratanabhandha Chowk, Dhamtari, Bastar

Road, District- Dhamtari, Chhattisgarh

2 - Jashbir Kaur Wd/o Harcharansingh Bhabra Aged About 68 Years

R/o Bhabra Building, Ratnabhandha Chowk, Dhamtari, Chhattisgarh,

District : Dhamtari, Chhattisgarh

3 - Gurdeep Kaur W/o Honey Khalaf Aged About 45 Years D/o

Harcharansingh, C/o Randhirsingh 544, Aashidham Law College

Chowk, West High Court Road, Dharampeth, Nagpur (Maharastra),

District : Nagpur, Maharashtra

4 - Kulwantsingh S/o Late Harcharansingh Aged About 43 Years R/o

544 Aashidham Law College Chowk, West High Court Road,

Dharampeth, Nagpur (Maharastra), District : Nagpur, Maharashtra

5 - Paramjeet Singh S/o Late Harcharansingh Aged About 42 Years R/o

544 Aashidham Law College Chowk, West High Court Road,

Dharampeth, Nagpur (Maharastra), District : Nagpur, Maharashtra

6 - Randhirsingh S/o Late Harcharansingh Aged About 41 Years R/o

544 Aashidham Law College Chowk, West High Court Road,

Dharampeth, Nagpur (Maharastra), District : Nagpur, Maharashtra

7 - Smt. Satvant Kaur W/o Shri G.C.Singh Aged About 68 Years D/o

Late Jaswantsingh Bhabra, R/o Green Park Taigor Road, Civil Lines,

Nagpur-440001, District : Nagpur, Maharashtra

8 - Smt. Rajpal Shondhi Wd/o Preetpalsingh Shondhi D/o Late

Jaswantsingh Bhabra, R/o 237-238 South City-1, Gungaon, District

Gungaon (Hariyana) (Plaintiffs), District : Gurgaon, Haryana

... Respondents

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Cause-title taken from Case Information System (CIS)

-------------------------------------------------------------------------------------

For Appellant: Mr. Gyan Prakash Shukla, Advocate

For Respondents: Mr. Shobit Koshta and Mr. Rajendra Kuamr, Advs.

-------------------------------------------------------------------------------------

Single Bench: Hon’ble Mrs. Justice Sushma Sawant

CAV Judgment

1.Invoking the appellate jurisdiction of this Court under Section 96

of the Code of Civil Procedure, 1908, the appellants

herein/defendants have preferred this appeal challenging the

judgment & decree dated 13.02.2018, passed by the Addl. District

Judge, Dhamtari (CG) in Civil Suit No.629A/2012 (Pratej Singh

and others v. Savarnkaur and others), by which the learned

Additional District Judge has decreed the suit filed by

respondent No.01/plaintiff- Pratej Singh for declaration of

partition of 1/6 share in the suit house and also for separate

possession in respect of the same.

2.The aforesaid challenge has been made on the following factual

backdrop: -

(For the sake of convenience, parties hereinafter will be referred

as per their status shown and ranking given in the civil suit before the

trial Court.)

Factual Matrix

-:Admitted facts between the parties:-

3.It is an admitted fact in the case that original plaintiff/respondent

No.01 herein- Pratej Singh, late Harcharan Singh, late Avtar

Singh, Smt. Satwant Singh (defendant No.11/respondent No.7

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herein), Smt. Rajpal (defendant No.12/respondent No.8 herein)

and late Smt. Iqbal, are all brothers and sisters and are the

sons/daughters of Dr. Jaswant Singh Bhabra and Smt. Mohini

Devi. The property in dispute is ancestral property.

4.The family tree of late Smt. Mohini Bai Bhabra, W/o Late Jaswant

Singh Bhabara is as follows:

Late Mohini Devi Bhabra (deceased),

wife who predeceased her: late Dr. Jaswant Singh Bhabra.

|

Son:

Late

Haricharan

Singh

|

Son:

Avtar Singh

|

|

|

Daughter:

Satwant @

Pawan

(Defendant

No.11)

Son:

Pratej Singh

(plaintiff)

Daughter:

Rajpal

(Defendant

No.12)

Daughter:

Iqbal

(Defendant

No.13)

Jasveer Kaur

(Defendant-6)

Gurdeep Kaur

(Defendant-7)

Kulwant Singh

(Defendant-8)

Paramjeet

Singh

(Defendant-9)

Randhari

Singh

(Defendant-

10)

Swarnkar (Wd)

(Defendant-1)

Daughter-

Gurmeet Kaur

(Defendant-5)

LRs of Late

Banti (Gunjit)-

Lavli (Jaspal)

Kaur

(defendant-2)

Tarunraj

(defendant-3)

Rasraj

(defendant-4)

-:Description of suit property :-

5.As per the averments made in the plaint, the suit property has

been described as under:

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“As per revenue record- House situated on Mutation

Sheet No. 07, Khasra No. 482/2, Plot No. 47 and

according to the Nazul records- Sheet No. 20-C, Plot No.

26/2, area 62 square meters. The map of first and second

floors thereof is annexed in the plaint. The northern side

of the said property is stated to be bounded by National

Highway No. 43, the southern side by the Municipal

Road, the eastern side by Manoharlal’s house, and the

western side by J. Martin’s house. The original sale deed

is not available with the plaintiff. The registered deed

records the area as 3,135 square feet. However, as per

the measurements taken by the architect/engineer and

the site plan prepared by him, the total plot area has

been calculated as 3,802 square feet (hereinafter referred to

as the “suit property”).”

-:Case of the Respondent No.01/Plaintiff- Pratej Singh

before the Trial Court:-

6.The case of the respondent No.01/plaintiff, in brief, is that on

13.09.1957 late Mohini Devi purchased the suit property from

Maksudan Bee and Saeeda Khatun by way of registered sale deed

for consideration of Rs. 7,500/- and came into the possession of

the suit property and, thereafter, the names of all the parties were

recorded in the revenue records i.e Kistbandh B1 and Khasra by

way of mutation dt. 25.03.2010. The suit property is known as

“Bhabra Building” in the city.

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7.It is further pleaded that the family of respondent No.01/plaintiff,

the family of defendant no.6 and the family of appellant

No.01/defendant no.1 are residing after making their own houses

in the suit property and further aforesaid suit house and property

is a joint property of the family members and no partition has

been taken place. In the year 1994, in order to obtain separate

possession of the suit house, son of the appellant No.01/defendant

no.1 late Gunjeetsingh @ banti had prepared unregistered deed of

family settlement through his advocate and without consent of the

other co-sharers obtained the signature of the respondent

No.01/plaintiff and defendant no.6 in the said deed forcibly. It is

further pleaded that the said deed of family settlement is not valid

due to non registration and lack of consent with the other co-

sharers. Thus, as per Hindu law other co-sharers are also entitled

to get 1/6 share in the suit property.

8.It is also pleaded in the plaint that in the year 2011, dispute arose

between the parities for receiving the rent and possession of the

shops situated in the suit property and criminal case was also

initiated under Section 145 of CrPC between the parties. In the

year 2012 another dispute arose for the part of the English liquor

shop and further the appellant/defendant no.1 with the help of her

son-in-law and outsiders tried to occupy the suit house forcibly.

Hence, with aforesaid pleading, the respondent No.01/plaintiff

filed a civil suit before the learned trial Court seeking a decree for

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declaration of partition of 1/6 share in the suit house and also for

separate possession in respect of the same

-:Written Statement of the Defendants before the Trial

Court:-

9.The appellants/defendants filed its written statement and denied

the averments of the plaint except the admitted facts and

submitted that the civil suit filed by the respondent

No.01/plaintiff, is barred by limitation and further

respondents/defendant no.10, 11 & 12 have no title and right over

the suit property at all because subsequently on 17.05.1994

partition already took place between the Respondent

No.1/plaintiff no.1, late Avtarsingh and late Harcharansingh and

they have occupied their own part in the suit property. The suit

property was purchased by late Sardar Jaswantsingh Bhabra of his

own income and, thus, he became the absolute owner of the suit

property.

10.It was further submitted that after partition the

appellant/defendant no.1 is receiving the rent amount and neither

dispute nor quarrel raised with regard to receiving the rent

amount ever by any party and further submitted that as per the

deed of family settlement dated 17.05.1994 the respondent

No.01/plaintiff accepted the title and ownership of the successors

of the appellant/defendant no. 1 to respondent/defendants no. 5

(A), (D) (II) and they are in possession of the suit property as

mentioned in the deed of family settlement dated 17.05.1994.

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11.It was further submitted that some dispute arose between the

respondent No.01/plaintiff and appellant/defendant no.1 with

regard to the wall situated between the two shops, upon which, on

25.05.2012 the Sikh society settled the dispute by way of an

agreement that the rent received from the said shops will be

distribute by the Sikh society amongst them but the

respondent/plaintiff no.1 and his family violated the terms of the

deed of family settlement and the aforesaid agreement and trying

to change the structure of the suit property as well as trying to

enter into possession illegally in the suit property. Hence, on the

basis of the above averments, it was prayed that the civil suit is

liable to dismiss on grounds including misjoinder of parties,

limitation and improper valuation.

-:Stand of the respondents/Defendant No.06 to 12 before

the trial Court:-

12.The defendant no.6 to defendant no. 12 separately filed their

written statement and supported the case of the respondent

No.01/plaintiff and submitted that after the death of Mohini Devi,

respondent No. 11 received one sealed envelope through his uncle

namely late Sardar Chandan Singh and after opening the envelope

there are some documents found i.e will, power of attorney and

nomination letter left by Mohini Devi, pursuant to which, all

parties are entitle to get rent which is received from the suit shops

as well as entitle to get their 1/6th share in the suit property.

Hence, they prayed to allow the civil suit filed by the

respondent/plaintiff no.1.

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-:Counter Claims of the respondent/defendant No.11

before the trial Court:-

13.That, the respondent/defendant no.11 filed a separate counter-

claim on the basis of will deed dated 04.06.1989 executed by late

Mohini Devi, Wife of late Sardar Jaswantsingh Bhabra and,

according to which, all the legal heirs of late Mohini Devi Bhabra

entered into an agreement in order to equally distribute 1/6 share

of the suit property, but later on, without consent of the

respondent/defendant no.11 to no.13, the respondent

No.01/plaintiff and appellants/defendant no.1 to no.6 had

prepared the deed of family settlement, in which, neither their

names are mentioned nor their signatures are present and, due to

which, they are deprived of their rights and further the alleged

deed is not registered as required under Section 17 of the

Registration Act, 1908 and further as per Section 23 of the Hindu

Succession Act, 1956 they are entitled to get 1/6 share in the suit

property. Hence, on the basis of the family arrangement and

continuing cause of action, the counterclaim was filed on

09.05.2012 seeking the relief stated in paragraph 12 of the

counterclaim.

-:Reply of the respondent No.01/plaintiff to the counter-

claim of the respondent/defendant No.11 before the trial

Court:-

14.On the other hand the respondent/plaintiff no.1 filed her written

statement and denied the averment of the counter claim except

the admitted fact.

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-:Findings of the learned trial Court:-

15.That, the learned Trial Court on the basis of the pleadings and the

written statement as well as the material evidence available on

record, has framed as may as 17 issues and after due consideration

of the facts and circumstances of the case, allowed the civil suit

filed by the respondent No.01/plaintiff and counterclaim filed by

the respondent/defendant no.11 by holding thus:

“In respect of the suit property, Dr. Jaswant Singh

Bhawra and Smt. Mohini Devi Bhawra alongwith

their three sons- Pratap Singh, Late Avtar Singh

and Late har Charan Singh and 03 daugthers-

Smt. Satwant Singh, Smt. Rajpal and Late Smt.

Iqbal, all are entitled to 1/6th share each and are

entitled to have their respective shares separated

by partition and to obtain separate possession.”

16.Being aggrieved by the aforesaid findings of the trial Court, the

appellants herein have filed this appeal on the following grounds:-

(i)That the impugned judgment and decree passed by the

learned trial Court is illegal, erroneous and contrary to law.

(ii) That the learned Trial Court without considering the facts

and circumstances of the case failed to proper examine the legality

and validity of the alleged will dated 04/06/1989 (Ex-D/9) and,

therefore, the finding on issue no.3 that by virtue of alleged will

deed daughters of late Mohini Devi are also entitled to get 1/6

share in the suit property is not only bad but also contrary to law.

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(iii)That the learned trial court has given perverse finding on

issue no.5 that the suit property was self acquired property of late

Mohini Devi and, therefore, the finding of the trial court is not

only bad but arbitrary in nature and will executed by late Mohini

Devi is not valid.

(iv)That the learned trial court failed to consider the facts that

the respondent/plaintiff'’s suit is barred by limitation and further

the existence of the deed of family settlement and the alleged will

deed are undisputed in the present civil suit, hence the plaintiff's

suit as well as counterclaim filed by the respondent/defendant

no.11 are not maintainable as barred by limitation.

(vi)That, the Learned Trial Court without properly considering

the facts and circumstances of the case and also acted illegally and

with material irregularity in exercise of its jurisdiction in respect

of the civil suit No.629A/2012, decreeing the suit against the

appellants/defendants is not only bad in law but also arbitrary in

nature.

(vii)That the suit for partition ought to have been dismissed as

abated for non substitution of the legal representatives of

deceased No.11 on records.

-:Proceedings before Appellate Court :-

17.Heard on the Appeal. In the context of the appeal and arguments,

evidence and documents, available on record of the trial Court

were examined.

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-:Points for determination :-

18.In order to dispose of both the First Appeals, following questions

are to be considered:-

(i) Whether the entire suit stood abated on account of the failure

to bring the legal representatives of deceased defendant Iqbal on

record?

(ii) Whether the judgment and decree passed by the Trial Court,

granting the plaintiff a one-sixth share in the suit property, suffer

from any illegality or infirmity warranting interference in this

appeal?

-:Arguments of the Appellants:-

19.The learned counsel for the appellant/defendants argued that

Iqbal, the sixth child of Mohini Devi, who was impleaded as a

defendant in the original suit, died on 05.09.2016 during the

pendency of the suit. However, the application filed under Order

XXII Rule 4 of the CPC for bringing her legal representatives on

record was not pressed, and her legal representatives were

consequently not brought on record. With the permission of the

Court, her name was deleted from the array of parties on

24.03.2017. It was, therefore, contended that the plaintiff’s Pratej

Singh suit had already abated before the Trial Court itself. It was

further argued that the plaintiff Pratej Singh had deliberately

adopted this course to manipulate Iqbal’s share and thereby

secure the same for himself.

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20.The learned counsel for the appellants/defendants further placed

reliance on Suresh Chandra (Dead) v. Parasram, 2025 SCC

OnLine SC 1427, and submitted that the Hon’ble Supreme

Court, in the said judgment, has laid down the principles

governing the circumstances in which a suit or appeal abates in its

entirety and those in which the abatement is only partial. It was

contended that, in view of the settled legal position and the

principles laid down in the aforesaid judgment, owing to the

failure to bring the legal representatives of the original defendant

Iqbal on record within the prescribed period, the plaintiff’s suit

had abated in its entirety, rendering the judgment and decree

passed by the Trial Court defective and unsustainable in law.

-:Arguments of the Respondents:-

21.Per contra, the learned counsel for the respondent/plaintiff,

contended that the failure to bring the legal representatives of

deceased defendant Iqbal on record would not result in

abatement of the entire suit, as all the other persons having rights

in the suit property were already on record. Reliance was placed

on T. Gnanavel v. T.S. Kanagaraj and Another, (2009) 14

SCC 294, in support of the contention that the Court has the

power under Order XXII Rule 4 CPC to exempt the plaintiff from

the necessity of substituting the legal representatives of a deceased

defendant.

22.Further reliance was placed on Dolai Maliko (Dead) v.

Krushna Chandra Patnaik and Others, 1966 SCC OnLine

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SC 152; Morasa Anjaiah v. Kondra Gunte Venkateswarlu,

1992 SCC OnLine AP 20 ; Kishorilal (D) v. Gopal and

Others, 2026 SCC OnLine SC 53 ; and Mahmud Mian v.

Shamsuddin Mian, (2005) 11 SCC 582 , in support of the

contention that the suit does not necessarily abate in its entirety

on account of the failure to bring the legal representatives of a

deceased defendant on record.

23.It was argued that the legal principles laid down in the aforesaid

judgments are equally applicable to the facts and circumstances of

the present case and, therefore, the Trial Court committed no

error in proceeding with the suit without holding that the entire

suit had abated. On this basis, the learned counsel submitted that

the decision of the Trial Court is proper and warrants no

interference.

-: Details of evidence and documents available before

the trial Court:-

24.Before the trial Court, the witnesses examined on behalf of the

plaintiff are- Shailvinder Kaur (PW-01), Smt. Jasbir Kaur (Pw-

02) and Dhirendra Rao (PW-03) and exhibited documents vide

Ex.P/01 to Ex.P/22C. Whereas, in defence, defendants

examined Smt. Savarnkaur (DW-01) and Rakesh Diwan (DW-

02) [on behalf of Defendants No.01 to 05] and Gurendra Singh

(DW-01) [on behalf of defendant No.11] and exhibited

documents vide Ex.D/01 to Ex.D/09.

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-:Analysis of the Appellate Court:-

Points for determination- (I)

“Whether the entire suit stood abated on account of the

failure to bring the legal representatives of deceased

defendant Iqbal on record?”

25.Although the Trial Court has discussed the evidence in detail, it is

significant to note that the fact that the suit property belonged to

Mohini Devi and that she had six children is undisputed. Five

of them are on record, either in person or through their legal

representatives. Upon the death of Iqbal, the sixth daughter

of Mohini Devi, the Trial Court, vide order dated 24-03-2017,

permitted deletion of her name without bringing her legal

representatives on record and passed a decree in the following

terms:-

“

वादग्रस्त मकानभूमिमेंडॉ

.

जसवंतसिंहभाबरावश्रीमतीमोहनीदेवी

भाबराकेतीनपुत्र

- प्र

तेजसिंह

, स्

व

.

अवतारसिंह

, स्

व

.

हरचरणसिंह एवं

तीनपुत्रियां

-

श्रीमतीसतवंतसिंह

,

श्रीमतीराजपाल एवंस्व

. श्री

मती

इकबाल सभी

1/6

भागहिस्सा

,

बटवारावपृथकआधिपत्यप्राप्तकरने

”

केअधिकारीहैं।

26.Thus, an apparent error emerges from the record of the Trial

Court, inasmuch as the legal representatives of one of the

defendants, Iqbal, were not brought on record. Although the

decree indicates that the Trial Court considered late Iqbal

entitled to a one-sixth share in the suit property, the judgment

cited by the respondent/plaintiff, T. Gnanavel v. T.S.

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Kanagaraj and Another, (2009) 14 SCC 294 , holds that the

Court has the power under Order XXII Rule 4 of the CPC to

exempt the plaintiff from the necessity of substituting the legal

representatives of a deceased defendant. However, the

applicability of this principle depends upon the facts and

circumstances of each case, and the said provision does not lay

down an inflexible rule applicable to every case.

27.It is particularly noteworthy that this is not a case where Iqbal,

the daughter of Mohini Devi, had no legal representatives. On the

contrary, paragraph 25 of the cross-examination of Shaili

@ Shailvinder Kaur (P.W.-1) clearly indicates that Iqbal was

also married at Devendra Nagar, Raipur, and that her husband

and children were residing there.

28.In view of this, the question that arises for consideration is

whether the failure to bring Iqbal’s legal representatives on record

resulted in abatement of the entire suit and whether the Trial

Court could have proceeded to adjudicate the matter in their

absence ?

29.In this regard, the respondent/defendant has relied upon the

judgment in Suresh Chandra (Dead) v. Parasram, 2025

SCC OnLine SC 1427, and contended that, having regard to the

nature of the suit instituted, the entire suit would abate. The

Supreme Court, in this judgment, has expressed its opinion on

this issue with reference to various judicial precedents. The

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relevant extracts from the said judgment are reproduced herein

below.

“17. Having regard to the aforesaid decisions, the law

governing determination of the issue as to whether

abatement of an appeal on non-substitution of a deceased

party is partial or whole, can be summarized as under:

1. The answer to the question whether the entire appeal

abates or it abates partially qua the deceased party alone,

will depend on facts of each case and, therefore, no

exhaustive statement about the circumstances in which

the entire appeal would abate can be made.

2. As a matter of course courts will not proceed with an

appeal (a) when the success of the appeal may lead to the

court coming to a decision which is in conflict with the

decision between the appellant and the deceased

respondent 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 would not be successfully executed.

3. In a case of 'joint and indivisible decree' or 'joint and

inseverable or inseparable decree', the abatement of

appeal in relation to one or more of the appellant(s) or

respondent(s) on account of failure to bring on record his

or their legal representatives in time would prove fatal to

the entire appeal because proceeding qua the surviving

party or parties may give rise to inconsistent or

contradictory decrees.

4. The question as to whether the decree is joint and

inseverable, or joint and severable or separable, must be

decided, for the purposes of abatement or dismissal of the

entire appeal, only with reference to the fact as to

whether the judgment/decree passed in the proceedings

vis-à-vis the remaining parties would suffer the vice of

contradictory or inconsistent decrees.

5. A decree can be said to be contradictory or inconsistent

with another decree only when the two decrees are

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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 which

means that the two decrees are mutually irreconcilable or

totally inconsistent, that is, if laid side by side, the only

impression would be that one is in the teeth of the other.

6. Where the plaintiffs or appellants have distinct,

separate and independent rights of their own i.e., not

inter-dependent upon the other, and for the purpose of

convenience, or otherwise, joined together in a single

litigation to vindicate their rights, the decree passed by

the court thereon is to be viewed in substance as a

combination of several decrees in favour of one or the

other parties and not as a joint and inseverable decree.

7. Existence of a joint right as distinguished from

tenancy-in-common is not the criterion of a joint or

inseverable or inseparable decree. The joint character of

the decree will take colour from the nature of the decree

challenged.”

30.Although the respondent/plaintiff has also relied upon the

judgments in Dolai Maliko (Dead) v. Krushna Chandra

Patnaik and Others, 1966 SCC OnLine SC 152; Morasa

Anjaiah v. Kondra Gunte Venkateswarlu, 1992 SCC

OnLine AP 20; Kishorilal (D) v. Gopal and Others, 2026

SCC OnLine SC 53; and Mahmud Mian v. Shamsuddin

Mian, (2005) 11 SCC 582, in support of the contention that the

entire suit would not abate, it is pertinent to note that Suresh

Chandra (Dead) v. Parasram, 2025 SCC OnLine SC 1427

clarifies that the question of total or partial abatement depends

upon the facts and circumstances of each case.

31.Therefore, the present case is being examined in the light of the

principles laid down in Suresh Chandra (supra), particularly

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the tests governing the nature of the decree and the possibility of

contradictory or irreconcilable decrees in the absence of the legal

representatives of the deceased party. In the light of the aforesaid

principles laid down by the Supreme Court, upon examination of

the facts and circumstances of the present case, it appears that the

entire suit cannot be held to have abated merely on account of

non-substitution of the legal representatives of late Iqbal.

32.It is neither a case where, in the absence of the legal

representatives of the deceased party, the adjudication would

result in contradictory decrees, the necessary relief could not be

granted against the surviving parties alone, or the decree against

them would be ineffective or incapable of execution, nor is it a

case where the rights of the parties cannot be adjudicated

separately. On the contrary, several material facts in the present

case are undisputed, and the rights of the parties can be

determined separately, enabling an effective decree to be passed

against the surviving parties. Therefore, applying the principles

laid down in Suresh Chandra (Dead) v. Parasram, 2025

SCC OnLine SC 1427, the entire suit cannot be held to have

abated merely on account of the non-substitution of the legal

representatives of late Iqbal.

Points for determination- (ii)

“Whether the judgment and decree passed by the Trial

Court, granting the plaintiff a one-sixth share in the suit

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property, suffer from any illegality or infirmity

warranting interference in this appeal?”

33.With regard to the question as to whether the judgment and

decree passed by the Trial Court, granting the plaintiff a one-sixth

share in the suit property, suffer from any illegality or infirmity

warranting interference in this appeal, it is pertinent to note that

Iqbal was not residing in the city where the suit property is

situated. A perusal of the record further reveals that there is a

serious dispute among the legal heirs of Mohini Devi

regarding possession of the suit property.

34.In such circumstances, if Iqbal's legal representatives are not

brought on record and are not made aware of the proceedings,

There is a possibility that one or more interested parties may

misuse or appropriate the share belonging to Iqbal's legal heirs.

This also raises material questions as to who would be entitled to

Iqbal's share; whether her legal representatives intend to

relinquish their rights and, if so, in whose favour; or, if they do not

intend to relinquish their rights, who among them is entitled to

claim a share in the property as her legal heir. These aspects

required proper examination by the Trial Court.

35.It is significant that, although Iqbal's legal representatives were

not impleaded as parties, they fall within the category of necessary

parties under Order I Rule 10 of the CPC, and their presence was

essential for the effective and complete adjudication of the

dispute. The Trial Court committed a material error in

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overlooking this aspect while passing the decree. In the absence of

Iqbal's legal representatives, the decree, insofar as it concerns the

determination and enforcement of the respective shares in the suit

property, may not be capable of effective execution. Therefore, for

the proper and effective adjudication of the dispute, the presence

of Iqbal's legal representatives appears to be necessary.

-:Final Conclusion:-

36.In view of the foregoing discussion, the judgment and decree

passed by the Trial Court cannot be sustained and deserve to be

set aside. Accordingly, the appeal is allowed, and the judgment

and decree dated 13.02.2018, passed by the Addl. District Judge,

Dhamtari (CG) in Civil Suit No.629A/2012 (Pratej Singh and

others v. Savarnkaur and others) are hereby set aside.

37.The matter is remanded to the Trial Court for retrial and fresh

adjudication in accordance with law, after impleading the legal

representatives of Late Iqbal as parties and affording due

opportunity of hearing to all concerned parties. The Trial Court

shall independently examine the matter afresh on its own merits,

without being influenced by any observations or findings made in

this judgment, which shall not be treated as binding while

deciding the suit afresh.

38.Considering that the matter is an old one, the Trial Court is

directed to conclude the retrial and decide the suit within three

months from the date of receipt of the record. The parties are

directed to appear before the Trial Court on 17.11.2026.

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39.The record be transmitted to the Trial Court forthwith.

Sd/-

(Sushma Sawant)

JUDGE

S@if