HAYALAPPA Vs. HAYALAPPA

JUDGEMENT

(1.) This is a second appeal by the defendants in O.S. No. 39/1 of 1964, on the file of the Court of the Principal Munsiff, Shorapur, and is directed against the judgment and decree made by the Additional Civil Judge at Gulbarga, in R.A. No. 61 of 1966. The Munsiff has dismissed the suit and the lower Appellate Court has allowed the appeal and decreed the suit as prayed for. The suit was filed for permanent injunction simpliciter on the basis of possessory title of the plaintiffs in regard to S. Nos. 73, 74 and 76 of Vibhutihalli Village, Shahapur Taluk. It is unnecessary to refer to the pleadings in detail, in the view I propose to take of the matter.

(2.) In the course of this appeal, a preliminary objection has been taken, on behalf of the appellants defendants, by Sri A. M. Farooq, learned Counsel. The objection is set out in one of the grounds taken in this appeal and reads thus:

(3.) In support of the above ground, an affidavit has been filed to the effect that respondents 2 and 4 (defendants 2 and 4 in the trial court) had died on 25-2-1967 and 17-6-1968 respectively. The appeal in that court had been instituted on 7-2-1966 and the date of the judgment by that Court is 26-11-1969. It is, therefore, clear that the aforesaid two persons had died during the pendency of the first appeal. Legal Representatives of these two deceased persons were not brought on record. The allegations have not been controverted before me in any counter filed on behalf of the respondents-plaintiffs. In support of this contention, reliance was placed on the decisions in Babu Sukhram Singh v. Ram Dular Singh , 1971 2 SCWR. 548.; Gurucharan Singh v. Gorakhanath Singh, AIR 1966 SC. 323. and Kanailal Manual v. Bhabataran Santra, AIR. 1970 Cal. 99.