ROOPCHAND Vs. MITHALAL

JUDGEMENT

(1.) IN this plaintiff's second appeal in a suit for possession, the only question for determination before me at this stage is whether the plaintiff's appeal in the court below abated entirely and not merely in part, that is against one of the defendant respondents Bherunlal as held by the lower appellate court.

(2.) IT is necessary to set out a few facts to appreciate the point in controversy. The plaintiff as sub-mortgagee brought the suit, out of which this appeal arises, against two persons, namely, Bherunlal and his son Mithalal for recovery of possession of certain immovable property on the allegation that they had taken unlawful possession thereof and had refused to return it when demanded. The plaintiff also impleaded the original mortgagees as defendants in this suit and these persons admitted the plaintiff's claim though their names were subsequently ordered to be removed from the array of parties for reasons into which it is not necessary to enter. The other defendants, namely, Bherunlal and Mithalal contested the suit. Their case was that they were rightful owners in possession of the suit property. The trial court dismissed the suit. The plaintiff then went in appeal to the District court, and the appeal eventually came to the Civil Judge for disposal by transfer. While the appeal was pending in the Civil Judge's court, defendant Bherunlal died on 283-1952. The plaintiff made an application on 16-12-1952 to bring his (Bherunlal's) other sons on the record as the deceased's legal representatives, but this application was rejected as being barred by time. Consequently, the Civil Judge held that the appeal had abated qua Bherunlal, and thereafter he heard the appeal against mithalal only and dismissed it on the merits. The plaintiff has come up in second appeal to this Court now against the judgment and decree of the Civil Judge.

(3.) A preliminary objection has been raised by learned counsel for the defendants that the entire appeal had abated in the lower appellate court and, therefore, this appeal was a nullity. This is how the question of abatement has arisen in this court.