KOCHU KUNJU NARAYANAN Vs. KOCHU VELAYUDHAN

JUDGEMENT

(1.) The plaintiff in O. S. No. 165 of 1970 on the file of the Munsiff's Court, Kanjirappally is the appellant. The suit is for a declaration that Ext. P6 sale deed dated 23-6-1961 in the name of the 1st defendant is benami for the plaintiff and that he is the owner of the property in possession of the same Defendants 2 and 3 are said to be in occupation of a portion of the building in the property as tenants under the plaintiff. The suit was later amended and a claim for recovery of possession of one room in the building is also added on the allegation that the defendants 1 and 4 to 6 trespassed into the house in the property and occupied one room on 11-12-1972. The suit property is 5 cents of land with a building thereon. Two separate portions of the building are admittedly in the occupation of defendants 2 and 3 and their occupation according to the plaintiff is as tenants under him Defendants 4 to 6 are the wife and children of the 1st defendant. They were impleaded in the suit on account of the alleged trespass on 11-12-1972. The suit was contested by the Ist defendant. He denied the plea of benami set up by the plaintiff and contended that the property belongs to him as per Ext. P6 sale deed in his favour, that defendants 2 and 3 are in occupation on permission granted by him, that he is in possession of the remaining extent of the property and he is staying in the house with his wife and children who were subsequently impleaded as defendants 4 to 6. The 4th defendant filed a written statement setting up title in her husband the 1st defendant as per Ext. P6 sale deed in his favour and contended that she is residing with her husband in the house in the suit property. Even though a written statement was filed by the 4th defendant, defendants 2, 3 4 and 6 remained ex parte. Issue (1) in the suit was whether the plaint properties were acquired in the name of the Ist defendant for and on behalf of the plaintiff. The Trial Court on this issue found that the benami alleged is not proved and that the plaintiff has not proved that Ext. P6 sale deed in the name of the 1st defendant is for his benefit. Additional issue No. 6 in the suit was whether defendants 1, 4, 5 and 6 have trespassed into one room in the suit building as alleged in the plaint. On this issue it was found as follows:-

(2.) The learned Counsel for the appellant strongly urges that the 4th respondent in the appeal was only a pro forma party. She had no claim to title in respect to the property and her written statement shows that she was only supporting the defendant her husband contending that the property belongs to him, as per Ext. P6 sale deed in his favour. The contest in the suit was only by the Ist defendant setting up title in himself and in such circumstances there is no abatement of the entire appeal on account of the death of the 4th respondent. As against this the teamed counsel for the contesting Ist respondent contends that for the season of the death of the 4th respondent, the appeal abates not only against the 4th respondent but in its entirety for the reason that it cannot be proceeded with even as against the other respondents in the appeal. In support of this proposition, the learned counsel for the Ist respondent relies on the decision in State of Punjab v. Nathu Ram ( AIR 1962 SC 89 ). In that case a property bringing to two brothers jointly was acquired by the State Government on lease under the Defence of lndia Act. The compensation offered by the Collector was not accepted and an application for reference under R.6 of the Land Acquisition (Defence of India) Rules 1943 was submitted to the State Government, by the two brothers who are joint owners of the property. The State Government referred the question of compensation to an arbitrator for decision under R.10 of the Rules aforesaid. The Arbitrator passed an award enhancing the compensation, against which the State Government appealed to the High Court. During the pendency of the appeal, one of the brothers died and no legal representatives were impleaded on his death The High Court dismissed the appeal as abated. It was in this context the question arose for consideration before the Supreme Court as to whether on the death of one of the joint owners of the property and on account of the abatement of the appeal as against him, whether the appeal could be continued against the surviving respondent, the other joint owner of the property concerned. The Supreme Court held as follows:

(3.) Reliance was placed by the learned counsel for the respondents on the decision in Ram Sarup & others v. Munshi and others ( AIR 1963 SC 553 ). In that case the question arose whether on the death of the 1st appellant before the Supreme Court, the appeal could be proceeded with at the instance of the surviving appellants without the legal representatives of the deceased appellant having been brought on record in the appeal. The facts of the case were that respondents 5 and 6 had sold certain agricultural lands to the five appellants before the Supreme Court. Respondents 1 to 4 instituted a suit for preemption claiming rights under S.15 of the Punjab Preemption Act of 1913. The suit was decreed and confirmed in appeal and second appeal. It was against this, that the appeal was filed by the alienees of the property from respondents 5 and 6. It is in this context that the Supreme Court held that the decree for preemption became final against the deceased appellant for the non impleadment of his legal representatives and in such a case, the appeal cannot be proceeded with at the instance of the surviving appellants, for the reason that the interests of the deceased appellant do not devolve on the surviving appellants. On a perusal of the document of sale in favour of the appellants, the Supreme Court held at Para.4 of its judgment as follows: