VANJOOR MADHAR SAHIB TRUST Vs. PACHAIYAPPAN DIED

JUDGEMENT

(1.) THIS Second Appeal is by the plaintiff Trust which is called Vanjoor Madhar Sahib Trust, Nagore. The said Trust filed the suit O.S. No. 189 of 1980 on the file of the District Munsif's Court, Nagapattinam fort possession and future profit. The suit was valued under S. 43(2) of the Tamil Nadu Court Fees and Suits Valuation Act (hereinafter referred to as ?the Act?). In other words, the suit was based on the alleged relationship of landlord and tenant between the plaintiff Trust and the defendant 1st resp ondent. No doubt, the 1st respondent Pachayappan died pending second appeal and his daughter B. Indira had come on record as his legal representative pursuant to the order in her own petition in CMP. No. 2671 of 1991.

(2.) THE suit was decreed. But, the lower appellate Court, in the appeal preferred by the defendant in A.S. No. 53 of 1981 on the file of sub court, Nagapattinam, has dismissed the suit and allowed the appeal on the ground that the plaintiff has not proved the above referred to landlord-tenant relationship between the plaintiff and the defendant.

(3.) FURTHER, the learned counsel for the 2nd respondent also submits that the second appeal itself has abated long back since after the death of the 1st respondent, only one legal representative, viz., his daughter Indira was brought on record, when she herself filed A.M.P. No. 2671 of 1991 and there are also other legal representatives, who have not been brought on record. With reference to this last submission, the learned counsel for the applicant submits that after the 1st respondent died on 25.1.1991 within time, that is on 19.3.1991 CMP No. 4171 of 1991 was filed for bringing on record all the legal representatives including the above said Indira on record and notice also was ordered in the said petition. Anyway she also submits that even if one legal representative is there on record, there will be no abatement. In this connection, she relies on Custodian of Branches of Banco National Ultramarino v. Nalini Bai Naigun (A.I.R. 1989 S.C. 1589 = 1989-2-L.W. 134) and Dolai Maliko v. Krishha Chandra Patnaik (A.I.R. 1967 S.C. 49)