SOBHA RAM AND ANR. Vs. SUNDER SINGH ETC.

JUDGEMENT

(1.) This appeal has been filed against the judgment and decree, dated 24th October, 1969, passed by the District Judge, Simla, dismissing the appeal of Sobha Ram against whom the Senior Subordinate Judge, Nahan, had passed a decree for possession of one -half of the land through pre -emption.

(2.) During the pendency of this appeal, Bahadur Singh pre - emptor died and an application, CM.P. No. 701 of 1971, was filed by the Appellants purporting to be one under Sec. 151 of the Code of Civil Procedure read with Order 22 of the Code of Civil Procedure. It was averred therein that the deceased has left no son, daughter or widow. The only person who can claim to be the heir of the deceased is Chetu, who was the Defendant in the suit. Chetu Defendant -Respondent being the vendor himself cannot be termed as a legal representative of the deceased Respondent No. 1 for the purposes of the suit from which the appeal has arisen. Therefore, it was submitted that the suit filed by Bahadur Singh deceased has become infructuous as the appeal is in continuation of the suit and there is no person in whose favour the right to sue can be held to survive.

(3.) Sunder Singh filed a reply to the Civil Miscellaneous Petition claiming himself to be the legal representative of Bahadur Singh on the basis that Bahadur Singh had gifted some land in his favour in the year 1953 and further that he is his nearest surviving co -lateral next to Chetu Respondent. Further that the deceased had gifted some other land including the suit land also in his favour on 14th August 1969, after the decree was passed by the trial Court. This application was dismissed on 1st May, 1972 and the objections of Sunder Singh were over -ruled. Thereafter Sunder Singh filed an application purporting to be one under Order 22, Rule 10 and 4 of the Code of Civil Procedure read with Sec. 151 of the Code. It was averred that Bahadur Singh had got that possession of the land in suit in execution of the decree and thereafter he transferred his right, title and interest in the land by way of a registered gift -deed, dated 14th August, 1969, to the applicant, who has been in possession of the land since then as owner. In view of the fact that the applicant had been transferred all rights and interests in the land in dispute as well as the other land by the deceased Bahadur Singh and that the applicant being in occupation thereof as full owner, he was entitled to be allowed to resist the appeal filed against Bahadur Singh deceased and he, therefore, prayed that he be permitted to be made a Respondent in place of Bahadur Singh Respondent for continuation and proper adjudication of the matter in appeal in his capacity as an assignee as well as legal representative.