KAVYA HUSANAPPA TALWAR Vs. RAMAPPA SHIVAPPA MAHAR

JUDGEMENT

(1.) This appeal is by four of the appellants in R.A.181 /1967 on the file of the Civil Judge at Bijapur. There was another appellant in the case; he was arrayed as 4th defentant in the trial Court and 4th appellant in the Court of first appeal. That appeal had been preferred against the judgment and decree made by the Munsiff, Jamkhandi, in C.S.367/1965. Since the 4th appellant in the Court below died during the pendency of the appeal and his legal representatives were not brought on record, the learned Civil Judge held that the cause of action was against all the appellants jointly and therefore the appeal abated as a whole even in regard to the other surviving appellants in the case. Hence, this appeal.

(2.) In order to examine the correctness or otherwise of the conclusion of the Court below, it is necessary to remind ourselves as to the tests to be applied in a case of this nature For this purpose, it is sufficient to refer to the enunciation of the Supreme Court in State of Punjab v. Nathu Ram, AIR. 1962 SC. 89. The enunciation reads thus :

(3.) It seems to me that none of the elements referred to in the above enunciation are present in the case. It is seen from the plaint filed in the suit (vide para 3) that each of the appellants had trespassed only on a portion touching his own property, by putting up a fence. It is, therefore, clear that the acts of the appellants do not constitute joint trespass by all of them together. Each of the appellants, therefore, has been clearly imputed with an act of trespass distinct and separate from each other, in respect of the portion adjoining their respective separate premises. In this view of the matter, the judgment in appeal cannot be upheld.