PALANIYANDI Vs. ARUMUGHA MUTHIRIAR

JUDGEMENT

(1.) THE plaintiffs in O. S. No. 409 of 1973 on the file of learned District Munsif, Karur are the appellants in the second appeal. Respondents 1 to 4 are defendants 1 to 4 respectively. That suit was filed by the plaintiffs for declaration and permanent injunction restraining the defendants, their men, agents and servants from interfering in any manner with the plaintiffs peaceful possession and enjoyment of the suit property, ayan punja lands measuring 1 acre and 45 cents in S. F. No. 439/3 with one Tamarind tree and two Karuvel trees in Chinthalavadi Village .

(2.) THE pith and substance the case of the plaintiffs is as follows: THE suit property originally belonged to one Malayala Pandaram and one Ponnusami Pandaram. THE plaintiffs mother purchased the same on 14. 10. 1935 for valuable consideration under Ex. A6 sale deed. Ever since then she had been in possession and enjoyment of the same. Subsequent to the death of their mother the suit property devolved on them and they had been in possession and enjoyment of the same. Defendants 1 to 3 have neither title nor possession to the suit properties. THE defendants are opposing the claim of title to the suit property and are interfering with their peaceful possession. Further it seems that the defendants 1 to 3 have executed a sale deed in favour of the fourth defendant with regard to the suit property. THE alleged sale deed is not legally valid and binding upon the plaintiff.

(3.) THERE remains to be considered the preliminary objections raised by the appellants in C. M. P. No. 7135 of 1989. THERE is no manner of doubt whatever that the trial Court passed a decree declaring the title of the plaintiffs besides granting the relief of injunction as prayed for. Pertinent it is to note that the defendants 1 to 3 did not at all claim any right, title or interest in the suit property in the sense of their having disposed of their interest in the suit property in favour of the fourth defendant and the fourth defendant alone had been in possession and enjoyment of the suit property since the time of purchase. Admittedly the fourth defendant died on 20. 8. 1980 and his legal representatives were not brought on record before the lower appellate Court which allowed the appeal on 9. 4. 1981. It is a settled proposition of law that the right to sue includes the right to appeal when a party dies pending appeal. On the death of one of the defendants, the question of bringing his legal representatives on record will arise only if the right to sue survives. In other words, if the rights of the deceased were personal to him, the right to sue will not survive to or against his legal representatives on the maxim actio personalis moritur cum person, a personal right of action dies with the person. L nowever , right to sue survives, then it is to be found out whether the surviving defendants are such persons as could represent the deceased, or in other words whether the right of the dying defendant vest in the surviving defendants, if the right to sue vests in them no question of abatement arises. Only the name of the deceased defendant is deleted and the case or appeal proceeds. Where the surviving defendants do not represent the deceased, the necessity of bringing his legal representatives arises, and as laid down in the sub-rule (3) of rule 4 of Order 22| of C. P. C. , if the legal representatives are not brought on record within the time limited by law, the suit or appeal shall abate only as against the deceased defendant.