VELAMALA APPA RAO Vs. BAGGU APPAYYA

JUDGEMENT

(1.) The Second Appeal arises out of the judgment and decree of the court of the learned Principal Senior Civil Judge, Srikakulam in A.S. No.11 of 1997. The lower appellate court had reversed the judgment of the court of learned District Munsif, Narasannapeta, in O.S. No.31 of 1992.

(2.) The appellants herein filed the suit against the respondent and his son for the relief of declaration that the wall in between them is common to both the parties and that the latter be restrained from making any constructions using the said wall as base, and from interfering with the right of the appellants to rest the 'Vennupatti' on the joint wall (the last part of the relief was claimed as one for mandatory injunction). The 2nd defendant died during the pendency of the suit. Therefore, the suit was treated as abated against him through an endorsement dated 19-1-1993. The trial court decreed the suit through its judgment dated 13-9-1996. Aggrieved thereby, the respondent herein filed the appeal. He canvassed several grounds touching on the merits as well as the one relating to the alleged abatement of the suit consequent on the death of his son. The lower appellate court rejected the contention of the respondent herein on merits and upheld the findings of the trial court. However, it allowed the appeal and set aside the decree on the ground that the suit abated on account of the death of the 2nd defendant. Hence the Second Appeal.

(3.) Sri Badana Bhaskara Rao learned counsel for the appellants, submits that the deceased-2nd defendant was none other than the son of the respondent herein and that both of them were impleaded in the suit as the members of the joint family. He contends that the second defendant died issueless and his only legal representative was the respondent herein, who is his father. Learned counsel points out that the joint family can be represented by any one of the members and even otherwise once the respondent herein is the legal representative of the deceased-2nd defendant, and when no objection was raised by him during the pendency of the suit, the lower appellate court was not justified in reversing the decree of the trial court. He placed reliance upon certain judgments rendered by the Supreme Court and other High Courts.