KOMATI BASAVAMMA Vs. NARINDI MAHALAKSHMAIAH

JUDGEMENT

(1.) This Letters Patent Appeal is filed against the judgment of our learned brother K. Ramaswamy J (as he then was) in A S No. 1485/80 dated 14-11-83; The facts of the case are that the plaintiffs filed a suit for declaration of title and possession and for recovery of mesne profits against the defendants, D-l and D-2 are the only contesting defendants. Both the parties reduced evidence and after trial, the court below has decreed the suit, O S No. 304/80. Against that judgment and decree, D-l and D-2 filed an appeal i e. AS No. 1485/80. During the pendency of the appeal, the 2nd plaintiff who is the 2nd respondent died on 13-1-81. Thereafter the death of the 2nd plaintiff i e. the 2nd respondent in the above appeal was not brought to the notice of the court and the appeal was heard and ultimately the judgment was pronounced on 14-11-83. The appeal was allowed and the suit of the plaintiffs was dismissed setting aside the judgment of the trial court. So plaintiffs 1, 3 and 4 filed the L P A against the judgment in A S No. 1485/80. In the memorandum of grounds of the LPA it is mentioned that the 2nd plaintiff died and CMP No. 16621/87 is filed to excuse the delay of 2351 days in seeking to set aside the abatement caused by the death of 2nd plaintiff; C M P No. 16622/87 is filed to set aside the abatement caused due to the death of 2nd plaintiff and CMP No. 16623/87 is filed to bring on record the L Rs of the 2nd plaintiff. Now the Letters Patent Appeal has come up for hearing.

(2.) The learned counsel for the appellant, Sri J.V. Suryanarayanarao raised a preliminary objection that the Appeal itself is not maintainable, as the 2nd plaintiff died pending AS No. 1485/80 and the appeal has abated for non-bringing the L Rs of the 2nd plaintiff on record. The judgment itself is a nullity as it is against a dead person. It is further submitted that the L R petition filed to bring the L Rs of the 2nd plaintiff is not maintainable in this L P A. At the most it is open to the plaintiffs to file such L R Petition in the appeal itself.

(3.) The learned counsel for the respondent Sri P Ramachandra Reddy contended that though the 2nd plaintiff died, the other plaintiffs are representing his interests and, therefore, there is no abatement and the L R petition can be ordered in this L P A.