KIRAT RAI Vs. GUNESHWAR RAI

JUDGEMENT

(1.) This is an application filed by the appellant in S. A. 598 of 1971 for reviewing my judgment dated 12.7.1974 dismissing the appeal.

(2.) The suit out of which this matter arises was filed by the opposite parties nos. 1 to 5 for a declaration of their title to and recovery of possession in respect of 14 dhurs and 7 dhurkis of land, being the northern portion of plot no. 2034 fully described in the plaint. The case is that immediately north of this land are plot nos. 2035 and 2036 ; plot no. 2035 belonging to the defendants 1 and 2nd party and plot no. 2036 to the defendant 3rd party ; and that they trespassed over the suit land. The suit was dismissed by the trial court and the plaintiffs appealed. During the pendency of the suit, at the trial stage, defendent no. 2 being the defendant second party, died and his heirs were substituted, one of them being Smt. Sushila Devi who was impleaded in the court below as the respondent no. 7. According to the case of the petitioner, Smt. Sushila Devi as also Narayan Rai, defendant no. 7 in the trial court and respondent no. 12 in the lower appellate court and no step for substitution was taken. The appeal was heard and allowed. The petitioner, who was defendent no. 3 and respondent no. 8 in the lower appellate court, filed Second Appeal no. 593 of 1971. He impleaded Smt. Sushila Devi and Narayan Rai as the respondent nos. 12 and 16 respectively. An application under section 151 of the Code of Civil Procedure was filed in the second appeal on the 11th May, 1972 stating about the death of the respondents and further mentioning the names of their heirs. It was also alleged that the appellant did not know about the facts of these deaths and then the service report on these respondents mentioning the fact was placed on the Lawzima Board, the appellant was informed by his Counsel in the High Court. It was asserted that the appeal in the lower appellate court had abated. On the 16th May 1972 the application was placed for orders and Mr. Justice Sarwar Ali directed notice of the application to be isued. An ordered processes etc. were filed and notices were issued fixing 30-8-1972 as the date for showing cause. The application was placed for final orders on 5.10.1972 when the names of the respondents 12 and 16 were directed to be expunged in accordance with the application. When the second appeal was placed for hearing before me on the 12th July, 1974, the learned counsel for the appellant failed to notice the point which he had raised in the application about the statement of the appeal in the lower appellate court. The appeal was passed on merits and was dismissed. On the 12th August, 1974, the present application for review was filed.

(3.) It has been contended on behalf of the appellant petitioner that the fact about the death of Sushila Devi and Narayan Rai during the pendency of the appeal in the lower appellate court was on the records of this case along with the further fact that their heirs had not been impleaded and on the very judgment under appeal the point regarding the abatement of appeal in the court below arose. The argument is that the dismissal of the appeal without a consideration of this question amounts to an error apparent on the face of the record. On behalf of the plaintiffs, Mr. Ramakant Verma contended that since the point was not raised on behalf of the appellant, it was not the duty of the Court to have considered and decided it and, in that view, the judgment cannot be assailed. It is not incumbent upon the court to examined the entire records of the case for discovering whether an additional point, not urged on behalf of the appellant, arose is an appeal. The correctness of the judgment had to be decided on the basis of the points raised on behalf of the appellant and since the question now urged was not pressed, the judgment of this court is not open to review. Reliance was placed on the decision in Mst. Ayesha Bai v. Daleep Singh, (AIR 1961 Rajsthan,186).