DONDAPANI SAHU Vs. ARJUNA PANDA

JUDGEMENT

(1.) -This is a plaintiff's appeal by special leave from a judgment of the orissa High court dismissing a suit for recovery of possession of lands described in the schedule attached to the plaint and for mesne profits on the ground of abatement.

(2.) The plaintiff had impleaded nine defendants. Defendants 1 to 4 were members of a joint Hindu family, defendant No. 1 being the father of defendant Nos. 2 to 4. Out of them defendant No. 4 did not appear and contest the suit. Defendant Nos. 1 to 3 claimed to be the owners of properties shown in Lot I in the schedule. Defendant Nos. 5 and 6 claimed one item out of Lot 1. Defendant No. 9 claimed the properties in Lots 2 and 3 in the schedule. Defendant Nos. 7 and 8 ultimately entered into a compromise. During the pendency of the suit the 4th defendant died on 25/06/1958. On 25/08/1958 the plaintiff filed a memorandum in the following terms:

(3.) The contesting defendant preferred an appeal to the Additional subordinate Judge in which one of the contentions raised was that the suit had abated as the legal representatives of the 4th defendant had not been impleaded in his place. This contention was negatived on the ground that the suit was for recovery of possession from the trespassers had died during the pendency of the suit, the plaintiff could be granted relief against the remaining trespassers. On the merits also the learned Additional Subordinate Judge affirmed the decision of the trial Judge.