PANCHAYAT COMMITTEE HALQA CHANDAK Vs. MIR MOHD

JUDGEMENT

(1.) The sole point for consideration in. this appeal is whether the appel-lant's right to sue survives ? The learned District Judge, Poonch has ruled that it does not survive and that appellant's appeal abates wholly. Hence, this appeal.

(2.) A suit for recovery of possession of land measuring 1 Kanal and 8 Marlas com-prising Khasra No. 1455 situate at Chandak, was instituted against the Panchayat Com-mittee Halqa Chandak which was decreed by the Sub-Judge, Poonch. Appellant herein went in appeal against the judgment and decree of the trial court some time in 1976. During the pendency of the appeal, one of the plaintiffs-respondent, Sher Mohd., died in 1978. Admittedly, no application was filed within the prescribed period of limitation to bring his legal representatives on record. The first step taken in this regard was some where in 1980, when appellant filed the requisite application and sought extension in time for substitution of legal representatives. On consideration of the matter, learned District Judge, Poonch, rejected the application and held that as the appeal had abated against deceased respondent, Sher Mohd., it could not survive against the surviving respondents, for the reason that a joint and indivisible decree had been passed in favour of the respondents (plaintiffs). Appellant is ag-grieved of this and assails the order of learned District Judge, Poonch on the ground that he had wrongly rejected the appellant's appli-cation for substitution of legal representatives of deceased respondent and had failed to determine - whether or not appellant's right to sue against the surviving respondent survives ?

(3.) Mr. Avtar Singh, LC for appellant, while arguing went a step further and sub-mitted that since in law one co-owner represents all co-owners against a trespasser, appellants right to sue should have been held 3, 6 to have survived. He placed reliance on AIR 1970 Patna 1 (FB) in support of his con-tention.