QADIR RESHI Vs. KHALIQ

JUDGEMENT

(1.) THIS is a civil revision the facts leading up to this revision are these. One Rasool Bhat, died leaving surviving three sons, Mohd. Bhat, Mahda Bhat and Sultan Bhat, in whose favour land measuring 60 kanals and 8 marlas situate in Gund Maqsood tehsil Chadura left behind by the deceased was mutated in equal shares, Mahda Bhat died leaving surviving his widow, Mat. Fati and his daughter Mst. Jani. After the death of Mahda Bhat these two ladies alienated the entire share of the land measuring 23 kanals and 2 marlas belonging to Mahda Bhat, to petitioners 1 and 2 herein, partly by sale and partly by mortgage. The sale extended to land measuring 6 kanals and 10 marlas covered by sale deed dated 19th Bhadon, 1992, while the mortgage covered land measuring 16 kanals and 7 marlas under a mortgage deed dated 26th Bhadon, 1998. Shaban Bhat, the grand son of Mohd Bhat and Guffar Bhat son of Sultan Bhat challenged these alienations and brought a suit for possession. The suit finally concluded by a judgment of this court dated 26th June, 1942, by which the plaintiffs suit was decreed to the extent of 3/8th share of the land left by Mahda Bhat. As regards the remaining 5/8th share it was held that devolved on Jani and Fati The implication of this judgment was that the mortgage was rendered valid to the extent of 7 kanals and 14 marlas only, allowance being given for the portion covered by the sale. In this process Fati and Jani and so also Guffar Bhat died. After the death of Jani the respondents herein along with Shaban Bhat brought a suit against the petitioners herein in the court of City Judge, Srinagar, and claimed the following reliefs :

(2.) THE learned counsel for the petitioners contended that in the absence of the legal representatives of the deceased, Shaban Bhat, having been brought on record the suit had abated in toto. This is what the learned counsel for the respondents did not concede who instead argued that having regard to the facts and circumstances of the case and the reliefs claimed there could be no abatement nor even partial.

(3.) ORDER 22 Rule 2 of the Civil Procedure Code inter -alia provides that where there are more plaintiffs than one and any of them dies and where the right to sue survives to the surviving plaintiffs or the plaintiff alone, the court shall cause an entry to be made to that effect on the record and the suit shall proceed at the instance of the surviving plaintiffs or the plaintiff. By rule 3 it is provided that if the right to sue does not survive to the surviving plaintiffs or the plaintiff alone and no steps are taken to cause the legal representatives of the deceased plaintiff to be brought on record within the period allowed by law the suit shall abate so far as the deceased plaintiff is concerned. This limited abatement may, however, some times have the effect of causing the abatement of the entire suit, as for example, when the right or relief claimed in the suit is an indivisible one existing in all the plaintiffs jointly.