MOHD RATHER Vs. AHSAN RATHER

JUDGEMENT

(1.) THIS is an appeal against the concurrent judgments of courts below decreeing the plaintiffs suit for per -emption.

(2.) THE facts are these: By a registered sale deed dated March 13, 1967 one. Ismail Rather, sold land measuring 3 kanals under survey numbers 540/min and 507/Min situate in village Chandharoo, Tehsil Pulwama, to Ghani Rather in consideration of sum of Rs. 5,000/ - entered in the sale deed. Ahsan Rather pre -empted the sale. During the pendency of the suit Ghani Rather resold the land to Ismail Rather by a registered sale deed dated March 30th 1963. Following this sale the plaintiff, Ahsan Rather, applied for amendment. The amendment was granted by the trial court of Munsiff Pulwama. The amended plaint was submitted on November 23th 1968. Therein an allegation was made that Ismail Rather had died and therefore his son Muma Rather was arrayed as a parry -defendant in his place. Along with the amended plaint an application was made for formal permission to substituted Muma Rather in place of Ismail Rather, it being represented that he was the sole legal representative of the deceased. The defendants filed their objections to the application saying that Muma Rather was not the sole representative of the deceased and that the deceased had also left a daughter who too was the legal representative of the deceased and that the plaintiff had unauthorisedly arranged Muma Rather as party defendant. No orders were made on the application. Instead the suit was tried on merits without any objection from the defendants and eventually decreed by the trial court. The decree was confirmed on appeal by the District Judge Anantnag.

(3.) APPEARING for the appellants, Mr. Hakim Sadiq argued that no orders have been given on the application for bringing the legal representatives of the deceased -defendant on record, the subsequent proceedings were vitiated and of no effect decree based thereon was therefore not sustainable. In reply Mr. Bhan urged that the defendants having allowed the suit to proceed without any formal orders on the application, as aforesaid, they could not be heard to say now that the proceedings were of no consequence