GULAM RASOOL Vs. MARIYAM

JUDGEMENT

(1.) The plaintiff-non-petitioner No. 1 instituted a suit for possession and mesne profits against the defendants in the court of District Judge, Pali. It was stated that in 1970, defendants Nos. 1 and 2, Mohammed Yusuf and Noor Mohammed took wrongful possession of the land in dispute shown in yellow colour in the map, that defendant No. 2 Munnilal took possession of this land from the aforesaid defendants, that 3-4 months prior to the institution of the suit, defendants Nos. 1 and 2 again took back its possession from defendant No. 3 and that they are carrying on business in the name of "Allahbux Allarakh Nogi". According to the plaintiff, defendants Nos. 1 and 2 or defendant No. 3 were trespassers. It was stated that the plaintiff is entitled to restoration of possession from defendants Nos. 1 and 2 or defendant No. 3, whosoever may be found in possession of the land in dispute. In para 3 of the plaint, it was stated that in the proceedings under Section 145, C.P.C., Ghishulal v. Abdulrehman, brother of defendant No. 2, informed the court of the S.D.M. that the land in dispute is in possession of defendant No. 3 and, therefore, he was impleaded as defendant. Ex parte proceedings were taken against defendant No. 3 on October 25, 1972.

(2.) Defendant No. 1 resisted the suit of the plaintiff. It was averred that defendants Nos. 1 and 2 did not take illegal possession of the land in dispute, in 1970 and that it was wrong that defendant No. 3, who was the proprietor of 'Basant Dyeing', took the land in possession before one year, as alleged by the plaintiff. Defendant No. 2 also resisted the suit. It was denied that defendant No. 3 ever took possession of the land in dispute. Issues were framed by the trial court on April 4, 1975. The fact of delivery ef possession to defendant No. 3 by defendants Nos. 1 and 2 was not put in issue.

(3.) Defendant No. 3 died during the pendency of the suit. An application was moved on behalf of defendant No. 1 Mo-hammad Yusuf on Sept. 2, 1978 stating that defendant No. 3 Munnilal had died four months before, that Munnilal was a necessary party to the suit, that ho has left heirs behind him who have not been brought on record and, therefore, the suit should be abated. This application was supported by his affidavit. Similarly, an application was submitted on behalf of defendant No. 6 Gulam Rasool praying that the suit may be dismissed as having abated. These applications were resisted on behalf of the plaintiff by filing a reply dated November 10, 1978. It was stated in the reply that in the suit, relief has been asked against defendants Nos. 1 and 2 or against defendants Nos. 3 and 6. It was, therefore, prayed that the applications filed on behalf of the aforesaid defendants may be dismissed. On January 5, 1979, the plaintiff's counsel submitted an application under Order XXII, Rule 4, C.P.C. praying that in the interest of justice decree may be passed against Munnilal without impleading his legal representatives on record. This application was resisted by defendant No. 1 Mohammed Yusuf and defendant No. 6 Gulam Rasool. The learned District Judge, by his order dated Feb. 2, 1979, ordered that the suit stood abated against defendant No. 3 alone. He, however, did not grant prayer of defendants Nos. 1 and 6 that on account of death of defendant No. 3 Munnilal, the suit stood abated in entirety. He, therefore, ordered that against the remaining defendants, the suit will proceed and that a note be given in the plaint that it has abated against defendant No. 3.