RAHIMULLA Vs. ZAHUR MOHAMMAD

JUDGEMENT

(1.) THIS is a reference by a learned Single Judge before whom a preliminary objection was taken when the present second appeal came up for hearing that the appeal has abated. As the question was not free from difficulty this reference was made.

(2.) THE facts necessary for disposing of the reference are these. Rahimulla and Karim bux were the owners of adjacent houses. In front of their houses was a piece of land, a lease of which was granted in favour of Smt. Sakina by the Urban improvement Board, Jaipur. Smt. Sakina had started constructions over the land. Rahimulla and Karim Bux claimed private rights of easement over the land. They also claimed that the land was a public thoroughfare. On these grounds they prayed for a decree perpetually restraining Smt. Sakina from constructing over the land in dispute and for granting a mandatory injunction against her for demolishing the constructions already made. The suit was contested by Smt. Sakina. The trial court decreed it. The first appellate court dismissed it. Rahimulla and Karim Bux preferred a second appeal. During the pendency of this appeal karim Bux died. His legal representatives were not brought on record. When the second appeal came up for hearing before the learned Single Judge a preliminary objection was raised on behalf of Smt. Sakina that the whole appeal abated as there was one decree against Rahimulla and Karim Bux which was not divisible.

(3.) WE have heard the learned counsel for the parties and we are of the opinion that Rahimulla's appeal does not abate.