NARAIN KAUR Vs. SHERU

JUDGEMENT

(1.) Raj Kumar son of Babu Ram, owner of the suit property, was murdered when he was very young and as he left no descendant or a widow, his estate was taken possession of by his fourth degree collaterals, respondents in this appeal. The appellants filed the present suit for possession of the suit property claiming themselves to be the better heirs, being the brothers and sister of Kartar Kaur, alleged to be the mother of the deceased Raj Kumar. The suit was filed against the collaterals alleging them to be joint tort-feasors.

(2.) The suit was contested by the respondents who denied the relationship of Kartar Kaur with Raj Kumar as well as of the plaintiffs with Kartar Kaur. The trial Court after recording the evidence held that the plaintiffs had failed to prove either that Raj Kumar was the son of Kartar Kaur from the loins of Babu Ram or that the plaintiffs were the brothers and sister of Kartar Kaur. The suit was consequently dismissed. On appeal, the learned District Judge Hoshiarpur, maintained the finding of the trial Court and confirmed the decree vide judgment dated April 25, 1975. Still dissatisfied the plaintiffs have come up in this second appeal.

(3.) During the pendency of this appeal it was found that Bhagwan Singh one of the defendants had died when the first appeal was pending in the lower appellate Court. Consequently, the appellants moved an application for impleading his heirs as respondents to the appeal and for condonation of delay in impleading them as party to the appeal. The application for condonation of delay was declined by me vide order dated November 28, 1978. As a result thereof, the appeal against the heirs of Bhagwan Singh was dismissed as barred by time. The question which now arises for determination is as to whether the appeal against the remaining respondents is validly constituted. According to the learned counsel for the appellants, the plaintiffs had separate and distinct cause of action against each of the collaterals of Raj Kumar who had taken possession of his estate on his death and, therefore, the appeal against the remaining respondents would be maintainable even in the absence of the heirs of Bhagwan Singh, one of the deceased respondent. In support of his contention, the learned counsel relied on the following observations of the Supreme Court in Municipal Board v. Pannalal Bhargva and Others, 1976 AIR(SC) 1091: