PAUL PINTO Vs. SUSHILA CHANDRAKANT RAIKAR

JUDGEMENT

(1.) THE appellants had filed a suit for recovery of possession of the suit property, for declaration that they are owners of the suit property; for rectification of the survey records, mesne profits and for permanent injunction restraining the respondents and her husband from interfering with the suit properties. the suit was filed on 5-12-1984 and, as can be seen from judgments of two Courts below, it appears that the said suit came up for hearing for the first time on 24-3-1988, when it was fixed for filing of written statement/settlement of issues. On that day, respondent, namely defendant No.2. filed an application stating that defendant No. had died in the year 1986; the heirs were not brought on record and she required time to file written statement as she had to obtain necessary documents.

(2.) ON 8-6-1988 the appellants filed an application for bringing heirs of deceased defendant No.1 on record. In the said application it was contended by the appellants that the suit had come up for hearing for the first time on 21-3-1988 (it appears that actually it had come up for hearing on 24-3-1988) for written statement of defendants; the plaintiffs had been in Bombay all along and came occasionally to Goa on short holiday; that they came to know of the death of defendant No.1 which took place in the year 1986, only on 21-3-1988 (again there is a mistake in the date) for the first time. Accordingly, the appellants expressed their desire to bring heirs of deceased defendant No.1 on record and prayed before the Court that defendant No.2 be directed to furnish to the plaintiffs names with their respective addresses of sons and daughters of the deceased defendant No.1. It was also prayed that the delay be condoned for reasons stated above as they had no knowledge of the death of defendant No.1 till 24-3-1988. This application was supported by affidavit of plaintiff No.1, namely, appellant No.1.

(3.) THE Second Appeal was admitted on two substantial questions of law, namely : - (1)Where the wife is already on record and the estate is represented, whether the suit for declaration, possession and cancellation could have been dismissed as having been abated. (2)Whether on the facts and circumstances of the case, the Appellants had shown sufficient cause for bringing the legal heirs on record.