FATHUBAI VITHALBHAI CHAUHAN Vs. DHANUBEN RATHOD

JUDGEMENT

(1.) Admit. Counsel for the respondent waives notice. With consent of the Counsel, appeal is heard finally at the admission stage.

(2.) Respondent no.1-plaintiff, instituted Regular Civil Suit No.23/1999 for partition and separate possession of the suit property against brothers and sisters. The Suit was decreed by the Civil Judge, Dadra and Nagar Haveli, Silvassa on 30th August, 2006. This decree, was assailed in Regular Civil Appeal No. 4/2006 before the District Judge, Dadra & Nagar Haveli at Silvassa. Pending Appeal, one of the appellants, Savitaben Vithalbhai Chauhan, (original defendant no.3) died on 20th February, 2011. May be for reasons, not known, legal representatives of Savitaben Vithalbhai Chauhan were not brought on record. Neither this fact was not brought to the notice of the learned District Judge. Appeal was heard and partly allowed by judgment and order dated 20th March, 2012. Feeling aggrieved, defendants no.1, 2 and 4 have preferred this Second Appeal.

(3.) Mr. Inamdar, learned Counsel for the appellants, submits that, considering the nature of the controversy wherein the suit was for partition, the death of one of the appellants, and his legal representatives not being brought on record, may result in conflicting and/or contradictory decrees. In support of his submission, he has relied on the judgment of this Court in the case of Ramrao Joti Godase and Others Vs. Kisan Joti Godase and Ors , 2012 2 MhLJ 741. Learned Counsel has relied on paragraphs-10 and 11 of the cited judgment and would submit that in the circumstances, the entire appeal stood abated. Paragraphs-10 and 11 read as under :