ORDER

1. This appeal is directed against the judgment of the learned Subordinate Judge, Krishangiri in A.S.No.8 of 1986 in reversing the judgment of the learned District Munsif, Hozur in I.A.No.344 of 1981 in O.S.No.356 of 1968.

2. I.A.No.344 of 1981 was filed under Order 20, Rule 12 of CPC by the appellant herein and in the affidavit in support of the said petition, the appellant has contended as follows:-

He filed the suit against the defendants for declaration of his easementary right of passage to take his cattle to the suit lands through the lands of the defendants and for a permanent injunction and for recovery of damages for Rs 2,000 per year for the loss of agricultural operations and for future mesne profits. The defendants contested the suit and ultimately a decree was passed against the defendant on 24.7.1973. Against the decree, the defendants filed petition under Order 9, Rule 13 of C.P.C to set aside the decree and the said application was dismissed. A further appeal was filed in C.M.A.No.29 of 1977 and after the disposal of the same by the District Court on 28.4.1978, a revision was filed by the defendants in C.R.P.No.1530 of 1978. By Older dated 23.10.1978, this Court had dismissed the revision petition. Therefore, the decree passed in the suit became final. According to the petitioner, on account of the protracted litigation, the plaintiff was not able to carry out his cultivation of the suit lands from the time of the plaint till now and even now he was unable to carry on his cultivation on account of the fences put up by the defendants. The report of the Commissioner also shows about the existence of the fence. The suit lands are wet lands, where two crops were being grown. The plaintiff had incurred heavy loss and damage as a result of the conduct of the defendants. A total sum of Rs.1,19,040 was claimed as compensation.

3. In the counter filed by the respondents, it was contended that as per the decree, costs of Rs.351 and damages of Rs.2,000 was payable. Subsequent payments have also been effected in the Execution Petition filed by the plaintiff and the execution petition was ultimately dismissed on 5.7.1980, The various allegations contained in the petition were denied by the respondents. The petitioner was in possession of the land and he has been cultivating the lands regularly without any hindrance from the respondents. The claim of Rs.1,19,040 was untenable and not bona fide. The petitioner had not stated how the amount as claimed was arrived at. The court fee paid by the plaintiff was not correct.

4. Before the trial court, the respondents objected to the claim both on the merits as well as on the question of maintainability also. The trial court after holding that the application was maintainable, held that the appellant was entitled to a sum of Rs.52,120 towards mesne profits for the period between 1968 to 1980. In the appeal filed by the respondents, the appellate court without going into the merits of the appeal as regards the quantum held that the petition under Order 20, Rule 12, C.P.C was not maintainable under the circumstances of the case. The learned Judge held that mesne profits which could be sought for under Order 20, Rule 12, C.P.C was only with reference to the probable income which the respondents would have earned during the pendency of the suit and not damages as claimed by the plaintiff. According to the learned Judge, in the plaint, the plaintiff did not ask for mesne profits and had asked for only damages and hence Order 20, Rule 12 of C.P.C cannot be invoked in the present case. The claim was therefore rejected and hence the present appeal.

5. During the pendency of this Second Appeal, it appears that the second respondent died and as a result of the failure on the part of the appellant to bring his legal representatives on record, the appeal has abated as against the second respondent. This is the admitted position.

6. Learned counsel appearing for the respondents very vehemently contends that the appeal is not maintainable in view of Order 22, Rule 4 of C.P.C. According to the learned counsel, the decree is enforceable only jointly as against all the respondents and as a result of the abatement caused by the death of one of the respondents, the decree cannot enforced as against the other respondents also. This principle was equally applicable to money claims also. Reliance is placed on the following judgments in support of the said contention.

(1) State of Punjab v. Nathu Ram, (2) Babu Sukhram Singh v. Ram Dular Singh and others, AIR 1973 S.C. 204 (3) Amar Singh and others v. Lal Singh and others, 1997 (2) S.C.C. 570

7. The objection taken by the learned counsel appearing for the respondents is rather drastic and if accepted, will have far reaching consequences and hence the issue requires a careful analysis. Order 22, Rule 4 of C.P.C does not in positive terms say that in the event of the suit being abated as against one defendant, the entire suit will become inoperative. Order 22 dealing with death, marriage or insolvency of parties, in fact specifically holds that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives -Order 22, Rule 1. In the other rules also including Rule 4. the emphasis is on the question whether the right to sue survives or not. In the very decision of the Supreme Court relied on by the learned counsel appearing for the appellant reported in State of Punjab v. Nathu Ram, , the Supreme Court observed as follows:-

"Suffice it to say that when O. 22, R 4 does not provide for the abatement of the appeals against the co-respondents of the deceased respondent there can be no question of abatement of the appeals against them. To say that the appeals against them abated in certain circumstances, is not a correct statement. Ofcourse, the appeals against them cannot proceed in certain circumstances and have therefore to be dismissed. Such a result depends on the nature of the relief sought in the appeal."

8. The Supreme Court also took note of Order 1, Rule 9 of C.P.C which provides that no suit shall be defeated only by reason of mis-joinder or non-joinder of parties and the Court has to deal with the matter as regards the rights of the parties actually before it, and the Court ultimately held that the issue will depend upon the facts of each case and no exhaustive statement can be made about the circumstances when it was possible to hold that the rule would apply.

9. It is therefore necessary to examine the facts of the present case. The plaintiff had prayed for a declaration of the plaintiff's easementary rights of passage to take the cattle and carts to do agricultural operations in the suit lands through survey numbers 601 and 620. The following averments in paragraph No.4 of the plaint are relevant:-

The plaintiff submits that his donor and his predecessors in title have been using the passage at points A and B for the last one hundred years and more. Even to this day, a. well marked way is visible in survey numbers 601 and 620 leading to the suit lands."

10. It may be mentioned here that survey number 601 belongs to the first respondent and survey number 620 belongs to the second respondent. In paragraph No.3 of the plaint also, the plaintiff has stated that in order to reach his lands, he has to pass through survey number 601 from the western side and survey number 620 on the southern side and that there is no other way to reach his lands. A rough plan is also attached to the plaint showing two separate and different entry points to his single block of land, entry at point A in survey number 601 and another entry at point B in survey number 620. Therefore, a perusal of the plaint allegations and the plan clearly shows that the suit claim relates to two . different entry points. It is possible to enter the plaintiff's land either through point 'A' or point 'B' or through both.

11. In this back ground, it is clear that notwithstanding the fact whether the plaintiff would be entitled to entry at point 'B' in survey number 620 or not, the relief is certainly enforceable as against respondent No.l to enter through point 'A' in Survey Number 601. In this context, it would be relevant to quote the following observations of the Supreme Court in State of Punjab v. Nathu Ram, :

"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 be properly constituted or can be said to be 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 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 succeeds, be Ineffective, that is to say it could not be successfully executed. (Italics supplied)

12. Therefore, if the decree was enforceable through the remaining respondents, the appeal shall not abate and in the present case, the decree is certainly enforceable and as against the first respondent, independently without any concern about the second respondent.

13. . It is also relevant to note that it is only the relief sought under Order 20, Rule 12 of C.P.C has abated as against the second respondent and not the main decree for declaration of easementary right. I.A.No.344 of 1981 being the subject matter of relief under Order 20, Rule 11 of C.P.C will not abate against the first respondent against whom the main decree is very much enforceable. It will also be useful to refer to the decision of the Supreme Court reported in Lucy Kochuvareed v. P.Mariappa Gounder and others, AIR 1979 SC 1214 in which the right to claim mesne profits of wrongful possession by several persons came up for consideration. The Supreme Court held that where the plaintiff's dispossession or his being kept out of possession was the result of a joint or concerted act of several persons, each of them who participates in the commission of that act would be liable for mesne profits.

14. Therefore, I am inclined to hold that having regard to the facts of the present case, the appeal does not become abated as a result of the death of the second respondent. The decisions of the Supreme Court relied upon by the learned counsel appearing for the appellant are clearly not applicable to the facts of the present case. In State of Punjab v. Nathu Ram, , the issue related to award of compensation under Land Acquisition Act in respect of a property held jointly by two brothers and the appeal abated against one of them. It was therefore held impossible to assess the compensation only in respect of one of them. The decision in Amar Singh and others v. Lal Singh and others, 1997 (2) S.C.C. 570 is a case of Will where all the respondents were jointly entitled to the property covered under the Will and therefore the challenge to the Will cannot have different results between the different beneficiaries. In the Judgment rendered in Babu Sukhram Singh v. Ram Dular Singh and others, AIR 1973 SC 204, decree was a joint one as against all the defendants directing them to demolish a construction. During the pendency of the appeal four of them died and the appeal abated as against them. It was therefore held that no separate plea can be maintained as against the remaining respondents and hence the entire appeal was abated.

15. As far as the decision of the Appellate Court holding that Order 20, Rule 12 C.P.C cannot apply to a claim of damages, the said finding cannot be upheld in view of the decision reported in Gopalakrishna Pillai and others v. Meenakshi Ayal and others,

holding that the Court has discretion and power to pass the decree directing the enquiry into future mesne profits even though in the plaint there was no specific prayer for mesne profits.

16. Further, even assuming that the learned Appellate Judge was right in his views, in this case, the learned Judge had totally ignored the fact that there is a decree specifically entitling the plaintiff for mesne profits. Clause (iv) of the decree is as follows:-

"that the defendants do pay a sum of Rs.2,000 for the damages incurred by the plaintiff - future damages may be determined in separate proceedings under Order 20 Rule 12 C.P.C."

17. The said decree having become final and binding between the parties, it is not open to the court in the interim application filed under Order 20, Rule 12 of CPC to hold that the plaintiff was not entitled for the relief. Therefore, the Order of the learned Appellate Judge cannot be sustained.

18. However, having regard to the fact that the Appellate Court did not consider the merits of the claims as regards the quantum of mesne profits, this appeal has to be remanded to the Appellate Court to deal with the appeal on merits.

19. In the result, the second appeal is remanded to the lower Appellate Court for disposal of the appeal on merits. The Appellate Court is directed to dispose of the appeal within a period of three months from the date of receipt of copy of this judgment along with the records connected with the appeal. Accordingly, the appeal is allowed. No costs.