GULAB CHAND Vs. KRISHNA BIHARILAL

JUDGEMENT

(1.) ONE Bulakichand had instituted a suit for declaration of title and possession in respect of certain properties situated in Sarafa Bazar, Lashkar. On the plaintiff's death his widow Pattobai was brought on record. She continued the suit. Eventually, a compromise was arrived at between the parties. Some properties were then transferred by Pattobai to Krishin Biharilal, father of her counsel, under three sale deeds. The present appeals arise out of two suits instituted by ganeshilal and Laxmichand as reversioners challenging the alienation made by pattobai in favour of Krishin Biharilal. At the request of the counsel for both sides both the appeals have been heard together and are being decided by a common judgment.

(2.) DURING the pendency of the reversioners' suit for setting aside the alienation and for declaration, that the alienation was not binding on them, Pattobai died in the year 1953 The defendants then raised an objection that me suit could not continue because it was a declaratory suit, pure and simple, filed in a representative capacity by presumptive reversioners. But on the death of Pattobai since there no longer remained any claim in any 'presumptive' reversioner the suit could not continue. This objection was rejected by the trial Judge on January 14, 1954. Eventually, the suit was dismissed on the ground of estoppel. The plaintiffs took an appeal. In the first appellate Court a preliminary objection arose whether the suit in the present form could continue after Pattobai's death. The learned judge of the first appellate Court answered this question in the negative and dismissed the suit on that ground alone. He also set aside all the findings reached by the trial Judge, not on merits but as a consequence of his decision on the preliminary question. The plaintiffs have now come up in second appeal.

(3.) IT is contended by Shri Gupta that the relief for possession was not open to the plaintiffs on the date of the institution of the suit and the proviso to section 42 of the Specific Relief Act was, therefore, no impediment to the continuance of the suit. Moreover, the suit court not be thrown out without giving plaintiffs an opportunity to amend the plaint in view of the subsequent events.