PRABHAKAR Vs. VAIJNATH

JUDGEMENT

(1.) The first application is filed by the appellant for condonation of delay of 981 days caused in bringing legal representatives of deceased respondent No.3 (original defendant No.2 - Pralhad) on the record and also for setting aside abatement and for bringing legal representatives of deceased defendant No.2-Pralhad on the record. The second application is filed by present respondent No.1 (original plaintiff) for dismissal of the appeal on the ground that legal representatives of present respondent No.3-Pralhad were not brought on record of Regular Civil Appeal No.19 of 2008 which was pending in District Court and if the said appeal had abated automatically, the present proceeding also needs to be treated as abated entirely. Both the sides are heard.

(2.) Regular Civil Suit No.28 of 2002 was filed by present respondent No.1 for relief of partition and separate possession of his alleged share in the landed property. It is his case that defendant No.1-Apparao (deceased father of appellant ) was his step brother and defendant No.2 (Pralhad, present respondent No.3) was also his step brother. It is the contention of the plaintiff that the suit property is ancestral and joint Hindu family property of himself and defendant Nos.1 and 2. Defendant No.1, Apparao contested the suit. He disputed the relation of plaintiff with him and he contended that the plaintiff is not the son of father of defendant No.1. He also contended that defendant No.2 is also not his brother, he is also not son of his father.

(3.) The suit proceeded ex parte against defendant No.2-Pralhad. The trial Court held that defendant No.1 and defendant No.2 and also the plaintiff each have onethird share in the suit property. The trial Court held that the plaintiff has proved that he is son of father of defendant No.1. In the mean time, defendant No.1- Apparao died and appeal came to be filed in District Court by his sons, present applicants. Both, plaintiff and defendant No.2 appeared in the appeal. Defendant- Pralhad was represented by his counsel in the appeal. After death of Pralhad learned counsel for Pralhad did not give information to the Lower Appellate Court that Pralhad was dead. In view of this, the appeal as it is was decided.