SANGESHWAR DASS Vs. SURINDER KUMAR

JUDGEMENT

(1.) In this second appeal from order of the learned Additional District Judge, Gurgaon, dated April 20, 1978, the sole question involved is as to whether on the death of one of the plaintiffs, the whole suit abated or it abated partially qua the share of the deceased plaintiff.

(2.) The suit giving rise to this appeal was filed by the five sons of the vendor, defendant No. 2, for possession of 5/6th share in the suit property with the allegations that the same was coparcenary property and defendant No. 2 had no right to it without consideration and legal necessity. During the pendency of the suit, Luxmi Chand, one of the plaintiffs died and his legal representatives were not brought on the record within the time prescribed. The application filed for setting aside the abatement was dismissed by the trial Court and along with that application was dismissed the suit holding that the same has abated in toto. Aggrieved by that judgment, the plaintiffs went in appeal. The order of the trial Court was reversed and it was held that the suit has abated only qua the deceased plaintiff. The case was consequently remanded for further trial in accordance with law. Dissatisfied with that judgment, the vendee-defendant has come up in this second appeal.

(3.) Mr. N.C. Jain, the learned counsel for the appellant relying on Herihar Pati V. Sisir Kumar Bose and others, 1959 AIR(Ori) 41 Bhagwan Singh and another V. Kulwinder Singh and others, 1974 AIR(P&H) 5 Bhanwarlal V. Bhulibai and others, 1972 AIR(Raj) 203 State of Punjab V. Nathu Ram, 1962 AIR(SC) 89 Sri Chand and others V. M/s Jagdish Pershad Kishan Chand and others, 1966 AIR(SC) 1427 and Ghulam Qadir and another V. Ditta and others, 1945 AIR(Lah) 184(Full Bench), contended that by dismissal of the suit of Luxmi Chand the sale is deemed to have been upheld qua his share. Now, if the suit of the plaintiffs is decreed it would result in two contradictory decrees. Consequently, he argued that the suit must be held to have abated in toto. Except the decision in Ghulam Qadir's case the other decisions relied upon by him relate to the abatement of appeals. The cases relating to the appeals are obviously distinguishable because a decree had come into being regarding a finding. In the case of a suit when it abates qua the share of one of the plaintiffs, the result is that it is deemed to have not been filed and the question of a decree qua his share does not arise. On the basis of the abatement of the appeals, it cannot be said respecting the suit that it would also abate even if the shares of the plaintiffs in the suit property are well defined and each one of them had an individual right to bring a suit.