SANGAPPA Vs. NAGAMMA (DECEASED) BY L.RS

JUDGEMENT

(1.) Heard Sri K. Appa Rao, learned Counsel for the revision petitioner, and Sri N.S. Prasad, learned Counsel for the respondents.

(2.) This revision under Sec. 115 of the Civil Procedure Code arises from the judgment and order of the Trial Court namely Civil Judge (Junior Division), Bijapur, whereby the Trial Court had rejected I.A. No. VII filed by the revision petitioner in O.S. No. 129 of 1989. The defendant I/revision petitioner made this application to the effect that the defendant 2 having died on 18-1-1995 and no heirs of legal representatives of the deceased defendant 2 having been brought on record, the case against him stands abated and therefore, the suit should be dismissed as having abated in entirety. The Trial Court dismissed that application taking the view that firstly, the defendant 1 had not filed any written statement denying or admitting the claim of the plaintiff. It mentions that though years passed since the filing of the suit, but the defendant avoided the filing of written statement and did not disclose his defence in respect of allegations made in the plaint. It further opined that the suit was only against the defendant-revision petitioner for decree for injunction and possession with respect to the land in dispute and it is the defendant 2 who herself got impleaded in the suit and the plaintiff had not impleaded her as a party originally. The Trial Court opined that the defendant 1 is already on record and if it is proved that he is the adopted son of husband of defendant 2, there will be no question of abatement. The Trial Court opined that the entire suit cannot be dismissed in view of abatement of the suit against the defendant 2 and rejected the application. Feeling aggrieved from this order, the defendant 1 has come up in revision.

(3.) The learned Counsel for the revision petitioner contended that the defendant 2 in her written statement had asserted that the defendant 1 i.e., the present revision petitioner is not the adopted son of her husband and the learned Counsel contended that the defendant 2 denied that the defendant 1 is the adopted son of the husband of defendant 2. The Trial Court wrongly held that if the defendant 1 proves the adoption, he can continue in the suit. The learned Counsel contended that as no legal heir of defendant 2 had been brought on record, the suit rightly abated against the defendant 2 and it ought to have been dismissed as having abated in entirety. The learned Counsel for the revision petitioner made a reference in this connection to the decision of their Lordships of the Supreme Court in the case of Babu Sukhram Singh Vs. Ram Dular Singh and Others, AIR 1973 SC 204 , and to the Single Judge's decision in the case of Narayan Bhat Vs. Narasimha Sastry, ILR 1988 Kar. 549 . The learned Counsel also made reference to a Division Bench decision in the case of T. Raju Setty Vs. Bank of Baroda, AIR 1992 Kant. 108 .