SURAJBHAN SINGH Vs. KUSHLA

JUDGEMENT

(1.) THE facts which have given rise to this second appeal by the plaintiff may be stated in brief as below.

(2.) THE plaintiff filed a suit in the court of the Assistant, Collector, Merta against Kushla, Bhimra and Ganesh, respondent defendants with the allegation that the defendants unlawfully took possession of plaintiffs' land on 3. 7. 1952 i. e. Asadh Sudi 11, Svt. 2009, and dispossessed him therefrom. THE plaintiff, therefore, prayed for restoration of possession over the land in dispute and also for a declaration that the defendants had no tenancy rights over the land in question. THE suit was resisted by the respondents on the ground that in Svt. 2005 and 2006 the said land remained uncultivated as there was no water in the well, that in Svt. 2007 the plaintiff himself forcibly cultivated this land, but in Svt. 2008 he willingly allowed the defendants to cultivate it and that they, therefore, rightly took possession of this land as tenants of the plaintiff. THE trial court after framing necessary issues recorded the evidence of the parties and decreed the suit against all the three respondents. An appeal was preferred before the learned Additional Commissioner, Jodhpur, by Kushla and Ganesh only, the third defendant namely Bhima having died during the pendency of the suit before the trial court. THE respondents who were the appellants in the lower court argued that as one of the defendants Bhima had died during the pendency of the suit and as his legal representatives were not brought on record, the decree of the trial court was a nullity as the suit had abated in its entirety. THE first appellate court without going into other questions involved in the case upheld this contention and allow the appeal. Hence this second appeal by the plaintiff.

(3.) THE cases cited by the respondent's counsel have no applicability to the present case as the facts are entirely different. THE question involved in the present case is not as regards the abatement of an appeal when the legal representatives of a deceased respondent or the appellant have not been brought on record. THE question to be determined here is as to what should be the effect of a decree passed against three defendants when one of them had died at the time of the passage of the decree and there was an omission to bring his legal representatives on record.