SANGTO HARI DEVIDAS (SINCE DECEASED BY LRS.) Vs. DEVALAYA OF SHRI LAKHNESHWAR OF MURKUD IN CANACONA TALUKA

JUDGEMENT

(1.) The respondent had filed a suit for declaration regarding ownership of three paddy fields - portions of which were being cultivated by the father of the petitioners who was the original defendant in the suit. The case of the respondent is that the original defendant had been permitted to cultivate parts of the said paddy fields in lieu of services rendered by him to the respondent Devasthan. The respondent further alleges that the original defendant stopped rendering services to Devalaya as a result of which the respondent is entitled to possession of the paddy fields. Besides declaration, the respondent also sought permanent injunction.

(2.) It is admitted position that original defendant expired on 2-11 -1981 and application for bringing his heirs on record was filed on 20th April, 1988. The trial Court dismissed the said application on the ground that no sufficient cause was shown and no application for setting aside abatement had been filed. The lower Court declared that the Suit had abated. The respondent challenged the said Order before District Court and Additional District Judge vide Order dated 29th Sept., 1994 allowed the Appeal. He, accordingly, allowed application for condonation of delay and application for bringing legal heirs on record and set aside the abatement. This order is challenged in this Revision.

(3.) Learned Advocate Shri A. F. Diniz submitted before me that in the proceedings before Aval Karkun between the same parties, the heirs of original defendant were brought on record in survey proceedings; that on 13-7-1987, Advocate for the defendant had filed an application before the trial Court in this Suit informing of the death of the original defendant; that application for bringing heirs on record without any affidavit in support was filed on 28th April, 1988 by Advocate for the plaintiff; that application for condonation of delay was filed only on 13-7-1988 and no application for setting aside the abatement was ever filed by the plaintiff. Relying upon State of Gujarat Vs. Saved Mohd. Baquire Edross AIR 1981 SC 1921 , Advocate Shri Diniz contends before me that the appellate Court had absolutely no justification for setting aside the Order of the trial Judge in the facts and circumstances of the case.