PATEL MITHABHAI MADHAV DECD Vs. PATEL SOMABHAI MOTIBHAI

JUDGEMENT

(1.) IN this second appeal respondents are Somabhai and Natwar- bhai. During the pendency of the second appeal Somabhai died and notice of the second appeal could not be served on him. The learned counsel Mr. Parikh declined to bring the heirs of Somabhai on record and he had not argued before the Registrar that the present party on the record is the legal representative and heir of the respondent No. 1. Originally the suit was against two defendants namely : (1) Somabhai Motibhai and (2) Natwarbhai Motibhai on the allegation that certain hedge was of a joint ownership. The suit was for an order to direct both the defendants to remove the hedge. The suit was filed against two defendants because they were the joint owners of the hedge. When the defendants are joint owners of a property involved in the suit the second appeal must abate as a whole and not in part in respect of one of the joint owners only because unless both the owners are joined as parties the appeal itself would not be properly constituted. Moreover if an order adverse to the remaining respondent is passed in the second appeal and an order cannot be passed against the respondent against whom the appeal has abated there would be a conflict in view of the test laid down by their Lordships of the Supreme Court in State of Punjab v. Natha Ram A.I.R. 1962 Supreme Court 89 I must therefore hold that the appeal abates as a whole because the two respondents are joint owners of the hedge and the appeal cannot abate in respect of only one of the respondent.

(2.) . The appeal abates. No orders as to costs. Appeal abates.