SHYAM LAL Vs. SHIV DAYAL

JUDGEMENT

(1.) This petition is preferred under Art.227 of the Constitution of India for a writ/ direction for quashing the order as contained in Annexure-P/1, passed by the learned Additional District Judge, Pichchore, district, Shivpuri.

(2.) The facts may be summarized. The petitioner was the plaintiff in the court-below. The suit was filed against the respondent and one Phulla for declaration and permanent injunction with the prayer that the petitioner-plaintiff be declared as Bhumiswami and the person in possession of the disputed agricultural land. It was also prayed that the registered sale-deed dated 31-3-1981 executed by defendant No. 2 Phulla in favour of the respondent be declared ineffective as against the petitioner, having been executed by a person without any right. A decree of permanent injunction was also prayed.

(3.) During the pendency of the suit, defendant No. 2 died. An application was moved by the petitioner-plaintiff on 9-11-1994 under O.22 R.4 and S.151 of the Code of Civil Procedure submitting that he came to know the factum of the death of respondent No. 2 Phulla, when the application was filed by the defendants in the Court on 17-8-1984 and, therefore, he sought to bring the heirs/L.Rs. of the deceased on record. The respondent filed the reply to this application submitting that defendant No. 2 Phulla had died on 8-1-1984 and the fact was to the knowledge of the petitioner but he did not prefer the application within time for bringing the L.Rs. of the deceased-defendant on record. Therefore, it was contended that the suit had abated. The learned trial court found that defendant Phulla had died on 8-1-1984 and the application by the plaintiff-petitioner under O.22, R.4 of the C.P.C. was filed on 9-11-1984. As such, it was barred by limitation and therefore, the suit had abated to the extent of relief claimed against defendant No. 2.