KRISHNA REDDY Vs. NARASIMHA REDDY

JUDGEMENT

(1.) The plaintiff filed the suit against five defendants for a declaration of his title and for a permanent injunction restraining the defendants from interfering with his possession and enjoyment of the suit property. His case was that the suit land of aa extent of Act 10. 20 cents in Survey Number 292 of Nagareddipalli, Kadiri Taluk exclusively belonged to the 1st defendant, who sold it to the plaintiff under the registered sale deed dated 4th April, 1955 for Rs. 1, 800/-, At the time of the sale, an extent of Act 1-75 cents which was the remaining portion in that survey number was sold to the 5th defendant, who was in possession and enjoyment of that portion. The 5th defendant's portion was a separate plot divided by ridges. The 2nd defendant is the junior paternal uncle of the 1st defendant, the 4th defendant is the son of the 2nd defendant, and the 3rd defendant is the grandson of the senior paternal uncle of the 1st defendant. Defendants 4 and 5 are the attestors to the sale deed in favour of the plaintiff. It is alleged that the 1st defendant got disappointed on account of the fact that the plaintiff had improved the land and also the price of the land has gone up. Hence the 1st defendant had set up defendants 2 to 4 to interfere with the possession and enjoyment of the plaintiff. The 5th defendant, who is the owner of the remaining portion in the survey number is actively instigating defendants 1 to 4 in their mala fide action. Hence the suit.

(2.) The 5th defendant did not file any written statement, He remained exparte. Subsequently, he died on 14th December. 1977, The plaintiff filed a petition under Order 22 Rule 4 (4) C.P.C., to exempt from the necessity of substituting the legal representatives of the 5th defendant. In that petition the plaintiff had stated that the 5th defendant died about three months before the date of the presentation of the petition, there was no obstruction from him after the date of the suit, he had no interest in the suit property and hence it was not necessary to imp'ead his legal representatives. That petition was opposed by the defendants. They stated that the 5th defendant died more than 1 1/2 years prior to the date of the petition and it was to the knoweldge of the plaintiff, that the suit had abated against him, and the power of the Court to exempt under Order 22 Rule 4 (4) C.P.C., could be exercised only before the abatement had taken place and could not be exercised after abatement, Relying upon Annapurna vs. Harsundari the Principal Subordinate Judge, Anantapur dismissed the petition. Questioning his order, the plaintiff has filed this revision.

(3.) It is submitted by the learned counsel for the petitioner-plaintiff that the decision in Annapurna vs. Harsundari is not correct. He relied upon Velappan vs. Parappan and S.A. Rahim vs. Rajamma. Even otherwise it was submitted by the learned counsel for the petitioner that the petitioner did not claim any relief against the 5th defendant, that he was not a necessary party and that he was not also giving him any trouble and, therefore, he was prepared to give him up, and consequently, his legal representatives need not be brought on record.