YESHWANT SIURAM POROBO Vs. GAGARAMA LOXIMONA SHET GAUNKAR

JUDGEMENT

(1.) The respondents and some others filed a suit for declaration and permanent injunction against the petitioners. They averred to be the owners in possession of the property known as 'Boroda' or 'Gorbatuleavoril Boroda' registered in the Land Registration Office under No.20457 and that they were in peaceful possession of the said property when the petitioners started making attempts of interference with it. It appears that in the course of the suit, the respondents lost possessions of the said property in favour of the petitioners and therefore, an application for amendment was moved and the prayer for permanent injunction was substituted by a prayer for restoration of possession.

(2.) Four plaintiffs, namely plaintiffs No.2, 4, 7 and 8 came to die in the course of the proceedings and on 19th August, 1986. the petitioners moved an application to the Court praying that a declaration of abatement of the suit be made as the legal representatives of the deceased plaintiffs had not been brought on record within the limitation time. In fact, the plaintiffs No.2, 7 and S had expired about five years prior to the moving of the said application and the plaintiff No.4 about two years before the said application The respondents registered the said application on the around that the suit was basically for restoration of possession and therefore, the prayer for declaration was a subordinate prayer. In the circumstances, according to the respondents, the prayer for declaration was to be dismissed in their failure to bring on record within the limitation time the legal representatives of the plaintiffs No.2, 4, 7 and 8. However, the suit was maintainable as regards the prayer for restoration of possession, since it is well-settled that a suit for restoration of the possession can be instituted by any of the co-owners alone. By his Order dated 17th September 1986, the learned Civil Judge, Senior Division Mapusa, upheld the contentions of the respondents and accordingly, dismissed the application filed by the petitioners on 19th August, 1986. It is against this Order that the present revision application is moved.

(3.) Mr. Bruto D'Costa, the learned counsel appearing for the petitioners, contended that it is not disputed that the legal representatives of the plaintiffs No.2, 4, 7 and 8 had not been brought on record within the limitation period. The suit was initially filed for declaration and injunction, but an amendment has been moved and the prayer for injunction has been substituted by a prayer for restoration of possession. He submitted that at no time the plaintiffs/respondents, moved an application for amendment dropping the prayer for declaration and only when the suit has abated they had come with a case that the suit was maintainable only as regards the prayer for restoration of possession. This much was no more available to the respondents and the suit having abated could not be given life again by opposing the application moved by the petitioners. The abatement, in fact, has operated automatically. In this connection, Mr. D'Costa relied on the decision of the Calcutta High Court in Aswini Kumar Roy & Anr. v. Kshitish Chandra Sen Gupta & Ors., 1971 AIR(Cal) 252.