MAHARAJ SINGH AND OTHERS Vs. GORIYA AND OTHERS

JUDGEMENT

(1.) This appeal is directed against a judgment and decree of the IInd Civil Judge, Banda dated Jan. 23, 1962.

(2.) The appeal before the Civil Judge was tiled against the judgment ana decree of the Munsif Banda, dated 28th Nov., i960 n original suit No. 301 of 1955. The suit was or declaration and possession over certain land with the allegations in brief that the plaintiffs and the proforma respondents represent a set of mortgagors in respect of certain property including Zamindari property and that in-view of the enforcement of the U.P. Zamindari Abolition and Land Reforms Act, the Zamindari right vested in the State and the right of the mortgagees represented by the defendants arrayed to the suit ceased. On this basis it is claimed, the erstwhile mortgagees no longer retain the right to be in possession over any part of the land in dispute. The suit was dismissed by the trial court. Upon the matter coming up in appeal, an application was made for the appellants under order 41 rule 27 of the Code of Civil Procedure, this was allowed by the appellate court and on this account the judgment and decree of the trial court were set aside and the case remanded to the trial court for decision afresh on merits after admitting the documents in question on record.

(3.) Learned counsel for the appellants submits that one of the appellants impleaded as appellant No. 7/2 namely, Indrajeet Singh as legal representative of the defendant-appellant Rustam Singh has died as was stated by him before this court on Oct. 15, 1985. No steps for substitution of his legal representatives have however, been taken thus far and in view thereof this appeal may be said to abate. The abatement arises taking into account the nature of the suit giving rise to the appeal which is the subject matter hereof and the conflicting decrees which may otherwise arise. For the plaintiffs-respondents it has been argued that subsequent to the remand directed under the impugned judgment and decree of the lower appellate court, the suit itself was decided though ex parte finally on Sept. 2, 1966 and in-view thereof this appeal be deemed to have been rendered in-fructuous. This is disputed from the side of the appellants, since it is submitted that despite the suit having since been disposed of on 2nd of September, 1966, in case the appeal was to be allowed on merits that may have the effect to reverse the judgment that has taken place in-pursuance of the remand directed by the lower appellate court. In my opinion, since the appeal has clearly abated due to the death of the appellant No. 7/2, as mentioned above, where-after no substitution of his legal representative has taken place, it is not required herein to enter into the westan law as to whether the appeal may be pursued still despite the decision in the suit made on 2nd Sept., 1966.