LACHHMAN SINGH Vs. HARBANS SINGH

JUDGEMENT

(1.) Without going into the details, it is suffice to say that plaintiffappellants' suit for possession of site A-B-C-D, as detailed in the heading of the plaint, was decreed against Harbans Singh, applicant- defendantrespondent No.1 vide judgment and decree dated 9.1.1978. Thereafter, the appeal filed by defendant-respondent No.1 was accepted and accordingly, the suit of the plaintiff-appellants was dismissed vide impugned judgment/decree dated 9.12.1980. Ultimately, the present Regular Second Appeal No. 711 of 1981 was filed in this Court by the plaintiff- appellants.

(2.) During the pendency of this aforesaid appeal, Civil Misc. Application bearing No. 9607-C of 2004 under Order 22 Rule 3(2) of the Code of Civil Procedure (hereinafter referred to as "the Code") was filed for dismissing the above mentioned Regular Second Appeal No. 711 of 1981 as having abated with the specific plea that since plaintiff- appellant No.1, namely, Lachhman Singh, had died about 19 years ago on 5.7.1985, i.e., before coming into force the relevant amendment of 1992 in the Code and his LRs have not been brought on record and that the interest of all the appellants is common and not severable. Therefore, the aforesaid R.S.A. filed by the plaintiff-appellants deserves to be dismissed in toto. Upon notice of this application, learned counsel for the appellants/non-applicants appeared and requested for time for filing reply to the aforesaid application. Ultimately, no reply was filed. During the course of arguments on the aforesaid application, learned counsel for the appellants/non-applicants has fairly admitted the factual and legal position put-forth in the aforesaid application filed by the applicant- respondent, but he vehemently argued that here, in the instant case, the estate of Lachhman Singh, plaintiff-appellant No.1 is represented by other surviving appellants. He then also submitted that when surviving appellants are already there on record, the appeal does not abate. In support of his this contention, learned counsel has relied upon Smt. Gema Coutinho Rodrigues Vs. Bricio Francisc Pareira and others AIR 1994 Supreme Court 1199.

(3.) Before proceeding further, it is pertinent to mention here that here in the instant case, subsequently all the other three appellants had also expired during the pendency of the appeal in this Court. However, they died after 1992 i.e., after coming into force the relevant amendment in the Code. Hence, the same is not relevant for the purpose of deciding the fate of this appeal.