SHANKERBHAI MANORBHAI PATEL Vs. MOTILAL RAMDAS SHAH

JUDGEMENT

(1.) In this case the plaintiffs sued to recover possession of a certain house-site from the defendants. The plaintiffs were uncle and nephew and claimed the land as tenants-in-common. The nephew (plaintiff No. 2) died during the pendency of the suit and his widow was joined as his legal representative. "The trial Court passed a decree in their favour on April 8, 1919.

(2.) The defendants appealed to the District Court. During the pendency of the appeal, the respondent No. 2, Bai Chanchal, the widow of the nephew, died in November 1919. No steps were taken to bring the legal representative of the deceased respondent on the record up to March 1921, when, an application was made by the appellants to the effect that the surviving respondent No. 1 was the heir and that the appeal could go on against him without any other person being brought on the record in place of the respondent No. 2. This application was opposed on the ground that the proper heir would be Bai Jekore, the sister of Bai Chanchal's husband: and that as she was not brought on the record the appeal abated as regards respondent No. 2. The learned Assistant Judge held that the appeal abated as regards respondent No. 2, and further held that in consequence thereof the appeal abated as regards respondent No. 1 also. He was of opinion that the shares of the co-owners not being ascertained any decree that may be passed against) respondent No. 1 on hearing the appeal would be infructuous, as the decree of the trial Court in favour of respondent No. 2 would stand in any case.

(3.) The appellants apparently did not apply to the lower appellate Court to set aside the abatement and to bring Bai Jekore on the record as the legal representative of respondent No. 2 under Order XXII, Rule 9, Sub-rule (2), as they could have and should have done when their application to treat the respondent No. 1 as the heir of respondent No. 2 was disallowed.