GOVIND LAXMAN JADHAV Vs. NAMDEO BALU JADHAV

JUDGEMENT

(1.) ). On 11th April 1988 this Court admitted this second Appeal by observing that ground (b) in the memorandum of Appeal raises a substantial question of law. By order dated 8th June 2004 passed in exercise of power under the proviso to sub-section (5) of section 100 of the Code of Civil Procedure, 1908, this Court framed one more substantial question of law. After framing the said substantial question of law, opportunity was giveri to the Respondent to argue on the said substantial question of, law. For tnat purpose, on 8th June 2004, the hearing was adjourned and sufficient time was granted. This Second Appeal was argued extensively on 30th June 2004 and was kept today for further hearing and judgment.

(2.) ). The ground (b) in the Memorandum of Appeal. reads thus (b) Whether the First Appellate Court has misread and misconstrued the pleadings and has erroneously allowed the appeal ? the additional substantial question of law framed by mo is as under "whether the Appeal preferred by the original defendants abated in its entirety. as the decree passed by the trial Court is joint and inseparable/indivisible inasmuch as the legal. representatives of the original Defendant no. 2/appeilant No. 2 in the District Court, were not brought on record after the death of the said defendant No. 2 during The said Defendant No. 2 during the pendency Of Appeal ?

(3.) WITH a view to appreciate the submissions made by the learned Counsel appearing for the parties, it is necessary to briefly refer to the facts of the case. The Appellant is the original Plaintiff and the respondent is the original Defendant No. 1. The suit was filed by the original Plaintiff against the Respondent and one Keru Tatoba Jadhav (here in after referred to as "defendant No,2") for removal of encroachment. The suit was decreed by the trial Court. An appeal was preferred by the Respondent and Defendant No. 2. The said appeal has been allowed by the District Court. Hence the original Plaintiff has preferred this Second Appeal.