SHIVRAM ALDONCAR, SINCE DECEASED, BY HIS LEGAL REPRESENTATIVES AND ANR. Vs. MARIA MERAVILHA DE MELO AND OTHERS

JUDGEMENT

(1.) This Revision Application arises out of the Order dated 16th Feb., 1983, passed in appeal by the learned District Judge, Panaji.

(2.) The respondent No. 1 Mrs. Maria Meravilha de Melo Asavedo Filed a suit in the Court of Civil Judge, Senior Division, Panaji, being the Civil Suit No. 92 of 1968, against one Cosme Loureneo de Souza and the petitioners Shivram and Tukaram, for a declaration that no right of way exists through the plaintiffs property 'Bhatulem' described in the plaint; for a perpetual injunction restraining the aforesaid defendants, their servants and agents from passing through the said property; and for a mandatory injunction directing the defendants to repair and restore the protective wall. In addition, a compensation to the tune of Rs. 100.00 was prayed for. The evidence in the suit was complete, and thereafter, arguments were heard. The suit was kept for Judgment, but before the passing of the Judgment, the trial Judge who had been dealing with the suit was transferred. His successor fixed a date for fresh arguments and it appears that before the fresh arguments were heard, the original defendant Cosme expired and his legal representatives were not brought on record. This fact was apparently not brought to the notice of the trial Judge, who ultimately, decreed the suit. An appeal was filed to the District Court, Panaji, and it was, inter alia, contended that the decree was a nullity as passed against inter alia one dead person. By the impugned Order, the learned District Judge, Panaji held that the decree was undoubtedly, a nullity as regards the deed defendant, but since the right to sue against the other original defendants was surviving, the decree was not a nullity as far as they were concerned.

(3.) Mr. Kholkar, the learned counsel appearing for the petitioners, contends before me that the learned Judge was wrong in holding that the suit has not abated in toto. He places reliance in support of the above submission, in the decisions of the Supreme Court in Babu Sukhram Singh Vs. Ram Dular Singh and others, A.I.R. 1973 S.C. 204 in State of Punjab Vs. Nathu Ram, A.I.R. 1962 S.C. 89, as well as in the decision of a Single Judge of the Allahabad High Court in Giris Shanker Singh Vs. Ram Singh, A.I.R. 1980 All. 334.