NAFISABI BAI (MAHILA) Vs. MAHILA SUGRABI

JUDGEMENT

(1.) PLAINTIFF in a suit for declaration and possession having lost in the trial Court and on appeal partially succeeded, has preferred this second appeal which was admitted by this Court on the following substantial question of law: - "Whether, on the facts and in the circumstances of the case, the appellant -plaintiff is entitled to be given a decree for joint possession to the extent of the share of the respondent No.1 Mst. Sugrabi in the land forming the subject matter of the registered sale -deed dated 17.6.1963"

(2.) DURING pendency of the appeal, respondents No.2, 3 and 6 died. The appellant moved an application on 1.12.92 for deleting the names of respondents No.2, 3 and 6 from the array of the respondents on 4.2.93 the application was allowed at the risk of the appellant, and accordingly, the names of the respondents No.2, 3 and 6 were deleted.

(3.) AFTER hearing counsel on both sides, I am of the opinion that this appeal now in the changed circumstances and because of the death of three respondents need not be dealt on the substantial question so framed, as the decree passed by the first appellate Court has become final because of the death of the three respondents. Though in the decree the declaration was granted in favour of the appellant that the plaintiff is entitled to the land to the extent of the share of Sugrabi, while granting decree no decree for partition and possession was ordered. As the decree having become final and the Court, which passed the decree, ought to have passed the decree after giving a declaration for getting partition through the Tehsil Court under section 178 (even if the appellate Court has not said so), the appellant/decree -holder can execute the decree for possession of the specific share of Sugrabi.