SWARAN SINGH Vs. RAMDITTA

JUDGEMENT

(1.) The facts leading of this reference to the Division Bench on the question "whether on the abatement of an appeal (preferred by a sister's son against the dismissal of his suit for possession against the collaterals of the ground that the plaintiff was a preferential heir, the shares of the defendant-collaterals being known) against one collateral the appeal can or cannot proceed against the remaining defendant-respondents" have been given in substantial and requisite detail in order of Harbans Singh, J., dated February 24, 1966, and need not be repeated.

(2.) To recapitulate the relevant salient features which are necessary for deciding the question referred to us, it may be stated that Shrimati Banti inherited half the estate in question from her husband Jawala Singh and collaterally inherited the remaining estate from her husband, brother Kartar Singh (the estate comprises of agricultural land, a house and a Taur in village Gondpur, tehsil Garhshankar, district Hoshiarpur), that Banti made a gift of the said property to Darshan Singh (appellant No. 1 in Regular Second Appeal 68 of 1967, and respondent No. 65 in the other appeal), that 64 collaterals of Jawala Singh and Kartar Singh (respondents Nos. 1 to 64 in Regular Second Appeal 68 of 1957, including Jawala Singh respondent No. 40, since deceased), obtained a decree from the trial Court on November 7, 1951, for a declaration about the said allienation being not binding on them, that during the appeal by Darshan Singh defendant against the said decree, Banti having died on October 19, 1952, the suit was converted into one for possession, that by the appellate decree, dated February 10, 1954, of Additional District Judge, Hoshiarpur, Darshan Singh's appeal was dismissed and the plaintiffs (the 64 collaterals) were granted a decree for possession of 1186/1296th share in the property in dispute, that subsequently on August 11, 1954, Harnam Singh and Sansar Singh collaterals who had not joined the first suit for declaration filed a separate suit for possession of 60/1296th share in the property in question wherein they impleaded Darshan Singh donee and Sansar Singh collaterals who had not joined the first suit for declare of 1957) (who are sister's sons of late Jawala Singh and Kartar Singh) as defendants, that the suit of Harnam Singh and another was contested by Darshan Singh as well as by the sister's sons, that the sister's sons, namely Shiv Singh and Swaran Singh, also instituted a suit for possession against Darshan Singh and all the collaterals of the last male holders relating to their entire estate and they be judgments and decrees, dated August 30, 1955, the trial Court decreed the suit of the two collaterals Harnam Singh and Sansar Singh, but dismissed the suit of the sister's sons. The decrees of the trial Court in the two suits were affirmed in appeal by the learned District Judge, Hoshiarpur, on November 5, 1956. It is not necessary to mention or go into the finding of the first appellate Court for the purpose of answering this reference.

(3.) Against the first appellate Court's judgment upholding the decree of the trial Court dismissing the suit of Swaran Singh and Shiv Singh, the plaintiffs preferred Regular Second Appeal 69 of 1957 on January 15, 1957. During the pendency of the appeal, Jawala Singh, son of Ganga Singh, respondent No. 40 (defendant No. 41 in the trial Court) died in 1960. No application to bring on record any person as his legal representative was made at any stage. When the case came up before the learned Single Judge, a preliminary objection was taken on behalf of the respondents that the appeal had abated against Jawala Singh and had thereafter become incompetent against the other respondents and was liable to be dismissed on that ground. The respondents relied on the judgment of the Supreme Court in State of Punjab V. Nathu Ram, 1962 AIR(SC) 89. In short, the question which has been referred to the Division Bench is whether this appeal falls within the four corners of the ratio of the judgment in Nathu Ram's case or not.