UDAI RAM Vs. DHARAM CHAND

JUDGEMENT

(1.) This defendant's second appeal is against the judgment and decree passed by Additional District Judge, Chittorgarh on 11-12-1989 by reversing the judgment and decree passed by Munsif and Judicial Magistrate, Kapasan on 27-11-82.

(2.) Facts relevance for the present purposes may be noticed. Dharamchand, respondent filed a suit for eviction against Udaram, Hazari and Mst. Sarju. The case of the plaintiff was that he purchased a suit property from the father of Udaram and Hazari and husband of Mst. Sarju in Samvat 2008 and let out the property to the vendors by a duly executed rent note. The trial Court while finding the execution of sale deed and rent note duly proved, dismissed the plaintiff's suit on the ground that as possession of the suit property was never delivered to the purchasers and the plaintiff has not been able to prove the nature of possession of the vendors prior to sale, it cannot be said that the vendors became tenant in the suit property. On appeal, the learned Additional District Judge, on the basis of finding recorded by trial Court about the execution of the sale deed and rent note, decreed the plaintiff's suit for eviction from the suit premises. Hence, this second appeal.

(3.) At the outset, it was urged by the learned counsel for the appellant that before the lower appellate Court during the pendency of the appeal one of the defendants respondents Hazari died on 1-3-1984 but his legal representatives have not been brought on record at any time. The appeal before the Additional District Judge, Chittorgarh abated so far Hazari was concerned and as the decree of dismissal of the suit was joint and indivisible one, the appeal against remaining repsondents also could not have proceeded. He, therefore, contends that decree having been passed against dead person is nullity and cannot be sustained.