SHIV PRASAD Vs. MATHURA

JUDGEMENT

(1.) The substantial questions of law involved, formulated and to be answered in the plaintiffs' second appeal are as under: -

(2.) The plaintiffs / appellants herein filed a suit for declaration of title, partition, separate possession and permanent injunction against defendants No.1 to 4 and also pleaded that sale made by defendants No.1 to 4 in favour of defendants No.5 and 6 be declared null and void. During pendency of the suit, defendant No.5 (one of the purchasers) died and by order dated 22.3.1993 the trial Court held the suit against defendant No.5 has abated by rejecting the application under Order 22 Rule 4 of the CPC. Thereafter the trial Court by its judgment and decree dated 4.1.2000 dismissed the suit. First Appeal preferred by the plaintiffs was also dismissed by the First Appellate Court by judgment and decree dated 5.3.2005 holding that by order dated 22.3.1993 the suit had abated as a whole and further held that there is mis-joinder of the party so far as appellants No.3A to 3I is concerned. Questioning the judgment and decree passed by the First Appellate Court, this second appeal under Section 100 of the CPC has been filed by the plaintiffs/appellants, in which substantial questions of law have been framed by this Court, which have been set-out in the opening paragraph of the judgment.

(3.) Mr.Ashok Kumar Shukla, learned counsel for the appellants/plaintiffs, would submit that the First Appellate Court is absolutely unjustified in holding the suit to be fully abated and further unjustified in holding that the appeal suffers from mis-joinder of necessary party.