RAFUWA Vs. ABBAS KHAN

JUDGEMENT

(1.) This is a plaintiffs' appeal. The suit was for an injunction and in the alternative for recovery of possession. There were five defendants in the suit, one of whom was a man called Abbas Khan. The suit was dismissed by the trial Court. The plaintiffs went up in appeal to the lower appellate Court. During the pendency of the appeal Abbas Khan defendant-respondent died. After more than a year of the death of Abbas Khan the plaintiffs-appellants, in the lower appellate Court, made an application bringing to the notice of the Court the fact of we death of Abbas Khan. They stated in that application that Abbas Khan left two sons as his heirs and legal representatives; that besides these two sons he left no other heir or legal representative; that these two sons were already on the record as defendants-respondents in the suit The prayer contained in the application was that the name of Abbas Khan may be removed from the array of the defendants-respondents and that the two sons of Abbas Khan who are already on the record be declared to be his heirs and legal representatives. This application was contested on behalf of the defendants-respondents. The defendants-respondents alleged in the objection tiled by them that besides the two sons, Abbas Khan had left several daughters and the issues of those daughters who were also the heirs and legal representatives of Abbas Khan. It was further stated in this objection that as these other heirs and legal representatives had not been brought on the record the entire appeal had abated and the prayer was accordingly made that the appeal be declared to nave abated.

(2.) It is remarkable that the plaintiffs-appellants did not relent even after this objection had been filed. It may have been open to them to have agreed to the substitution of these other heirs also, it may also nave been open to them to have asked the Court to allow the two sons of Abbas Khan who were already on the record to represent the entire body of heirs and legal representatives and thus to represent the estate effectively. It may be that by reason of the delay after which the application was made by the plaintiff-appellants, the plaintiff-appellants may have been required to make an application for condonation of delay but in view of the attitude taken up by the plaintiff-appellants this situation neither arose nor could arise.

(3.) The lower appellate Court framed an issue to the effect whether defendant-respondents 2 and 3, namely, the sons of Abbas Khan were the only heirs and legal representatives of Abbas Khan and if they were not the only heirs and legal representatives what was the effect of other heirs and legal representatives not having been sought to be brought on the record.