NARAYANA SHETTY Vs. RAMA SHETTY

JUDGEMENT

(1.) Defendants 2 to 11 in O.S. No.257 of 1960 on the file of the Munsiff, Mangalore, are the appellants in this second appeal. The respondents are the plaintiffs.

(2.) The plaintiffs instituted the suit for an injunction restraining the defendants from interfering with their possession of the properties described in plaint 'A' Sch. and for possession of a house. The plaintiffs and defendants 1 to 11 in the trial Court were members of an undivided Aliyasanthana kutumba. The case of the plaintiffs in respect of lands described in plaint 'A' Sch. was that the said lands belonged to one Mrs.Rose Coelho under whom they held chalgeni lease and that they alone were entitled to be in possession and enjoyment of the same as chalgeni lessees. They urged that the defendants were unauthorisedly trying to interfere with their peaceful possession of these lease hold properties and, therefore, the defendants should be restrained from doing so by the issue of a permanent injunction. The house, the possession of which was sought by the plaintiffs, was situate on one of the lands bearing S.No.23/3 mentioned in plaint 'A' Sch. The defendants pleaded that the chalgeni lease on the basis of which the plaintiffs prayed for relief did not exclusively belong to the plaintiffs, but to the Aliyasanthana Kutumba of which both the plaintiffs and defendants were members. The relevant part of the common written statement filed by defendants 1 to 11 is extracted below:

(3.) Defendants 1 to 11, therefore, asserted a common title as against the plaintiffs. Their specific case was that the entire chalgeni lease-hold right belonged to all the members of the kutumba including the plaintiffs and not exclusively to the plaintiffs The trial Court dismissed the suit. Against the judgment and decree of the trial Court the plaintiffs filed an appeal before the Civil Judge, Mangalore, on 3-8-1964. During the pendency of that appeal, defendant-1 Thvampanna Shetty died on 4-11-1964. The plaintiffs did not bring on record the legal representatives of the said Thvampanna Shetty and allowed the appeal to prceed with without Thvampanna Shetty interest being represented by his legal representatives. It is stated that Thvampanna Shetty has left behind him his widow and children as his heirs at law by virtue of the provisions of S.7(2) of the Hindu Succession Act and those heirs are not on record and that defendants 2 to 11 are rot the legal representatives of the deceased. Thvarrmanna Shetty. When the appeal was heard before the lower appellate Court, a contention was raised on behalf of the surviving defendants namely. defendants 2 to 11 that the appeal as a whole abated in view of the fact that the heirs of Thvampanna Shetty had not been brought on record as his legal representative. The learned Civil Judge over-ruled the above contention of defendants 2 to 11 and heard the appeal on merits. By hia judgment, he modified the decree passed by lower Court by decreeing the suit only in respect of the relief of injunction restraining defendants 2 to 11 from interfering with the peaceful possession and enjoyment of the lease-hold properties by the plaintiffs. He however dismissed the suit in respect of the house. Aggrieved bv the judgment and decree of the Court below, defendants 2 to 11 have filed this second appeal.