SHAKOOR KHAN Vs. RAM MOHAN

JUDGEMENT

(1.) A preliminary objection has been raised by the counsel for the respondents that the whole appeal has abated on account of the failure on the part of the appellants to bring on record the legal representatives of the deceased Ibrahim khan (appellant No. 3) who died in May 1973. It is, therefore, necessary to first dispose of the preliminary objection.

(2.) THE facts of the case are, that one Bakshilal filed a suit for possession, permanent injunction and mesne profits against Shakoor Khan, Akbar Khan, ibrahim Khan and Hadi Khan on 17-9-1954. That suit was registered as Civil suit No. 215 of 1954 and it resulted in a decree in favour of Bakshi Lal by the first appellate Court, namely, Additional District Judge, Vidisha on 18-1-58. It is, however, important to note that only a decree for permanent injunction was passed as it was held that the plaintiff would be deemed to be in possession. The matter went in appeal before the High Court, but the decree passed by the additional Judge was kept intact. Bakshi Lal thereafter filed an application in execution for possession of the land on the basis of the decree for permanent injunction granted in his favour. That application was dismissed and this led to the filation of the present suit for possession against the four defendants. The trial Court, namely Civil Judge Class II Ganj Basoda decreed the suit for possession by his judgment dated 12-11-1965. The defendant filed appeal which was dismissed by the First Additional District Judge, Bhopal, on 23-61967 and this is defendants' second appeal.

(3.) IT may be mentioned here that defendant No. 1 Shakoor Khan died during pendency ot this appeal and his legal representatives Mst. Habiban Bi and others have been brought on record. Thereafter as already stated above, defendant-appellant No. 3 Ibrahim Khan also died in May 1973. An application for bringing on record his legal representatives was made on 5-2-1976 and it is supported by affidavit of Moosa Bhai one of the sons of Ibrahim Khan. The application is being opposed on behalf of the respondents as hopelessly barred by time. The legal representatives of Ibrahim Khan have also made an application for setting aside abatement under Order 22, Rule 9, C. P. C. These two applications under Order 22, Rule 3 and Order 22, Rule 9 are registered as I. A. Nos. 401/76 and 489/76.