HALLAYUD AND ANR. Vs. JAI DEV AND ORS.

JUDGEMENT

(1.) This appeal is directed against the order dated 15.01.1983 whereby the Additional District Judge, Mandi, has accepted the appeal filed by the Respondents -plaintiffs No. 1 and 2, setting aside the judgment and decree dated 08.01.1982 of Additional Sub Judge, Mandi in Civil Suit No. 203/67/95/79 and remanded the case to the trial Court for deciding it afresh in view of the observations made in his order. The Additional Sub Judge, Mandi, had dismissed the suit as not maintainable in the absence of legal representatives of Brestu deceased who was impleaded as defendant No. 3 in the suit and had died during the pendency thereof. The litigation between the parties is pending since long. It pertains, to land which was sold by Brestu deceased in favour of Respondents -defendants No. 1 and 2. Two of his sons the Respondents plaintiffs No. 1 and 2 felt aggrieved and instituted civil suit for declaration that the sale made by their father Brestu was void and not binding on them as the land in dispute was joint Hindu family property and that the sale was not for legal necessity. Consequential relief of possession was also sought for. Another son of Brestu deceased was also impleaded, who is proforma Respondent No. 3 in the present appeal. The suit was opposed by the Appellants -defendants, who filed joint written statement, as well as by Brestu deceased who filed separate written statement. The specific stand taken by Brestu deceased was that the land in dispute was his self acquired property and was not joint Hindu Family property, as such, the sale made in favour of the Appellants -defendants was legal and valid. During the pendency of the appeal, Brestu died on 03.12.1970, corresponding to 18th Macrh, 2029 BK. An application for bringing on record his legal representatives was filed by the Respondents -plaintiffs on 03.06.1971 which was opposed on the ground that it was filed beyond the period of limitation, as such, the suit stood abated. Thereafter, the Respondents -plaintiffs withdrew their application on 21.03.1973 and on the same day filed Anr. application under Order 1 Rule 10 Code of Civil Procedure praying for the deletion of the name of Brestu from the array of defendants on the ground that he was not a necessary party. The Appellants -defendants filed reply to the application taking the stand that the effect of striking off the name of Brestu' deceased was that the suit was not maintainable and prayed for its dismissal. Ultimately, this weighed with the trial Court and it dismissed the application under Order 1 Rule 10 Code of Civil Procedure and also the suit vide order dated 20.06.1975 holding it as abated in the absence of the legal representative of Brestu deceased.

(2.) Feeling aggrieved, the Respondents -plaintiffs filed appeal No. 26 of 1975 but failed. They further challenged the judgment dated 29.06.1978 of the District Judge by filing Civil Revision No. 9 of 1979 in this Court which was allowed vide order dated 10.08.1981 whereby the application of the Respondents -plaintiffs under Order 1 Rule 10 Code of Civil Procedure for deletion of the name of Brestu deceased was accepted. However, the question whether the suit had abated or not, as a result of the death of Brestu, was left open and the trial Court was directed to decide the same after affording an opportunity to the parties. The trial Court vide its order dated 08.01.1982 again dismissed the suit as abated, holding that," Non impleadment of widow and daughters of deceased Brestu in the suit as provided under Order 22 Rule 4 Code of Civil Procedure makes the present suit incompetent and thus the suit abates in its entirety." The District Judge, while setting aside the order of the trial Court, has taken a different view and has held that," The suit does not abate as a whole and can be continued against the Respondents/vendees and an effective decree can still be granted." The District Judge vide the impugned judgment has remanded the case for fresh trial. Hence the present appeal.

(3.) We have heard the learned Counsel for the parties and gone through the record. Sh. B.K. Malhotra, learned Counsel appearing for the Appellants -defendants, has urged that Brestu deceased was a necessary party and in the absence of his legal representatives, the whole of the suit had abated. He has also argued that after the death of Brestu all his legal representatives, including his widow and daughters, were required to be brought on record and it cannot be said that his estate or his interest in the litigation was sufficiently represented by Respondents -plaintiffs No. 1 and 2 and the proforma -Respondent No. 3. To substantiate his submissions, Sh. Malhotra has referred to case law, which we shall discuss in the latter part of our judgment.