SITA RAM Vs. ROSHAN LAL

JUDGEMENT

(1.) This is a plaintiffs appeal and arises out of a suit for possession of a house and for recovery of damages on the allegation that the house belonged to the plaintiff- appellants, and that the defendants had taken unlawful possession of the same and having demolished a portion of the house were constructing a new house.

(2.) The defence to the suit was that the defendants were building a house on an aftada piece of land that belonged to the zemindar with the latter's permission, and that there was no house of the plaintiffs on that piece of land at the time that the defendants were permitted by the zemindar to build a house. The defence found favour with the trial Court and it dismissed the plaintiffs suit, and the decree of the trial Court has been affirmed by the lower appellate Court.

(3.) When the appeal was called on for hearing, a preliminary objection was taken by the learned Counsel for the respondents, that, because of the omission of the plaintiffs-appellants to bring upon the record one of the legal representatives of Roshan Lal, one of the deceased respondents, within the time allowed by law, the entire appeal had abated. This objection is based on the following facts. The suit was originally instituted against two defendants, Roshan Lal and Shanker Lal, and both of them were arrayed as respondents in the present appeal. During the pendency of the appeal in this Court Roshan Lal died, leaving as his legal representatives two persons Shanker Lal and Prem Narain. Shanker Lal being already a party to the appeal a note was made on the record on the application of the plaintiffs-appellants, that he is also a legal representative of Roshan Lal, and Prem Narain was not brought upon the record as a legal representative of Roshan Lal. It is argued by the learned Counsel for the respondents that Prem Narain not having been brought upon the record, the appeal abated not only as against Roshan Lal, the deceased respondent, but abated as a whole, and in support of the argument reliance has been placed by him on the case of Daya Ram Ojha V/s. Ram Narain .