DURAISWAMI Vs. MUNISAMI

JUDGEMENT

(1.) THIS appeal has to be dismissed on two grounds. The first is that the respondent, who was the first defendant in the suit, is dead and the appeal has abated only against him but also against the other respondents. Secondly, there is no merit appeal.

(2.) ACCORDING to the learned counsel for the second respondent, the first respondent about five years back. His legal representatives are not brought on record. The respondents are not his legal representatives. Consequently, the appeal has abated against the first respondent. The suit is one for declaration of title of the plaintiffs recovery of possession. The plaintiffs prayed for a single decree against all the defendants. While the trial court declared the title of the plaintiffs, the lower appellate court dismissed the suit in toto. As the appeal has abated as against the first respondent, it has necessarily to abate as against the other respondents also as there cannot be a decree for dismissal the suit as against the first respondent and a conflicting decree declaring the title plaintiffs as against the other respondents. Hence the appeal could not be proceeded and the entire appeal has to be dismissed as abated.

(3.) ADMITTEDLY, there was a suit by the respondents in O.S.No.348 of 1972 on the file District Munsif, Chengalpattu against the appellants with regard to the same property. was a suit for specific performance of a contract dated 5.9.1956. The District Munsif that the relief of Specific performance could not be granted to the plaintiffs therein as barred by limitation. However, he held that the plaintiffs therein were in possession performance of the agreement under Sec.53-A of the Transfer of Property Act and possession was entitled to be protected by court. Ultimately, he gave a decree that the plaintiffs therein were entitled to a declaration possession of the suit properties and their possession had to be protected. He gave consequential permanent injunction as prayed for by the plaintiffs therein. The herein did not file any appeal and challenge the decree in O.S.No.349 of 1972.