JAGWATI DEVI Vs. SITA RAM JAIN

JUDGEMENT

(1.) Vide judgment dated 02.12.1987, a decree for possession in respect of the disputed plot was passed by the Trial Court in favour of Sita Ram and his wife Smt. Kamla Rani, who were plaintiffs in the main suit and against Smt. Jagwati Devi, appellant/defendant. Aggrieved by that order, Smt. Jagwanti Devi filed an appeal on 24.02.1988, wherein Smt Kamla Rani and Shri Sita Ram were arrayed as respondents No.1 and 2 respectively.

(2.) Smt. Kamla Rani expired on 6.12.1990, during the pendency of the first appeal. Counsel for the above said respondents moved an application on 23.2.1991, where it was clearly, specifically and unequivocally mentioned that Smt. Kamla Rani, respondent No.1 had left behind her, Shri Sita Ram, her husband and master Gaurav, her son aged about 13 years. No application for substitution of LRs of deceased Smt. Kamla Rani was filed.

(3.) Instead, the appellant Smt. Jagwati Devi moved an application on 20.2.1992 stating that the name of Smt. Kamla Rani be struck off from the array of respondents because after the death of Smt. Kamla Rani, her husband Shri Sita Ram is the sole surviving representative and her minor son does not acquire any right to be sued in that appeal. She also unambiguously mentioned ?that right to be sued survives to the sole surviving, legal representative Shri Sita Ram, respondent No.2 and not to her son.? The First Appellate Court vide its order dated 6.5.1992 deleted the name of respondent No.1 accordingly. Vide order sheet dated 5.11.1997, learned counsel for the respondent argued that the appeal stood abated. The Court left this point open and fixed the case for final arguments on 25.11.1997. On 4.7.1998, the First Appellate Court ordered that appeal stood abated as incompetent.