NARAIN DAS Vs. SHEO DIN

JUDGEMENT

(1.) A preliminary objection has been taken on behalf of the respondents that this appeal has abated as a whole. This appeal arises out of a suit brought by two plaintiffs, Sheo Din and Debi, framed as a redemption suit. The Court of first instance decreed the claim holding that the mortgage had been established. An appeal was preferred by the defendants and there was a cross appeal by the plaintiffs. Both these appeals have been dismissed. The learned Judge has come to the conclusion that the mortgage has not been satisfactorily proved by the plaintiffs, but he has repelled the contention of the defendants that they have been in adverse possession of this property. He has come to the conclusion that the defendants possession has been permissive and that they are licensees. He was inclined to allow the plaintiffs a decree for possession without any consideration as to the payment of the sum offered by them. But as in their appeal they had not challenged that part of the decree he did not try to disturb it. The result was that he dismissed both the appeals.

(2.) The defendants preferred an appeal to this Court impleading both the plaintiffs. During the pendency of the appeal Sheo Din, respondent, died and no application to bring his legal representatives on the record was made within the time allowed by law. It is admitted before us that Sheo Din and Debi did not form members of a joint Hindu family with rights of survivorship inter se.

(3.) There can be no doubt that the appeal must abate as against Sheo Din, deceased, and his legal heirs. The question is whether the appeal must be deemed to have abated as regards the respondent Debi also or not.