Gurdial Singh vs Sadhu Singh

G.C. Garg, J.—This second appeal is directed against the judgment and decree of the learned District Judge, Ambala whereby the judgment and decree dated 10.2.1975 passed by the trial Court was set aside The suit filed by the plaintiffappellant was consequently dismissed.

The appellant filed a suit for possession of a vacant site as fully detailed in the plaint on the allegations that he purchased the suit land from one Mehma Singh for a consideration of Rs. 800/ vide registered sale deed dated 4.1.1967 and that defendant Nos. 1 to 4 have trespassed on the site. A mandatory injunction to close the door marked ''X'' in the site plan Exhibit P 2 and to desist from obstructing the plaintiff from erecting his wall was also prayed for.

Defendant Nos. 1 to 4 contested the suit and denied that the vendor of the plaintiff was the owner of the suit property or that the plaintiff ever came into possession thereof. Further, the defence taken by them was that they were in possession of the suit property and were the owners thereof. A plea was also taken by them that they had become the owners by way of adverse possession. Vendor Mehma Singh was also made a party to the suit as defendant No. 5 who supported the plaintiffs case by filing a separate written statement.

The trial Court found that the plaintiff was the owner of the property in dispute, he having purchased the same from Mehma Singh through a registered sale deed. It was further found that Mehma Singh was the owner of the suit property, the suit was within time and that the defendants had not become the owners by adverse possession. In view of these findings, the plaintiffs suit was decreed by the trial Court.

Defendant Nos. 1 to 3 feeling aggrieved against the judgment and decree of the trial Court filed an appeal which was heard and decided by the learned District Judge, Ambala. The judgment and decree of the trial Court was set aside by the lower appellate Court on the short ground that during the pendency of the suit, Ishar Singh defendant No. 4 had died on 18.1.1973 and his legal representatives had not been brought on record within the time allowed by law and thus, the suit had abated.

It is against the judgment and decree of the lower appellate Court that the present appeal has been filed at the instance of the plaintiff.

It is the admitted case of the parties that during the pendency of the suit, Ishar Singh defendant No. 4 died on 18.1.1973 issue less. It is further not disputed that Ishar Singh was the brother of Nanak Singh father of defendant Nos. 1 to 3. An application dated 24.9.1975 was filed by defendant Nos. 1 to 3 before the lower appellate Court stating that Ishar Singh had left behind a Will dated 3.11.1972 in their favour and also in favour of Harnek Singh who is none else but the son of the predeceased brother of defendant Nos. 1 to 3.

The learned counsel for the appellant submitted that in the facts of this case the suit could not be held to have abated even in the absence of an application when three of the four legal representatives of deceased Ishar Singh were already on the record. It was contended that the making of an application was not necessary though it may be proper. The learned counsel further submitted that the finding of the Court below to the effect that though defendant Nos. 1 to 3, who were also the heirs of the deceased, were already on the record yet Harnek Singh having not been impleaded as an heir and no application having been filed to represent the estate of the deceased by the heirs already on the record, the suit would abate, was not correct. In other words, the submission is that once some of the heirs of the deceased defendant are already on the record his estate would be duly represented and the suit would not abate even if no application is made to bring on record the heirs other than those already on the record. In support of his submission the learned counsel for the appealed upon Agya Puri deceased Chela Albel Puri Mahant and Mohtam Smadh Alakh Puri Sadh Sanyasi v. Nahar Puri Karnail Puri, 1982 PLR 109.

On the other hand, the counsel for the respondents contended that no application having been made to bring on record the legal representatives of the deceased defendant, the suit would abate irrespective of the fact that three out of the four legal representatives were already on the record.

I have considered the matter and find force in the submission of the learned counsel for the appellant. In my view the suit could not be ordered to have abated merely on the ground that no application to bring on record the legal representatives of the deceased defendant was made. The legal representatives already on the record sufficiently represented the estate of the deceased defendant even in the absence of an application that they would represent the estate of the deceased. I find support for my above view from the observations made in Agya Puri''s case (supra).

In the result, the appeal succeeds and the judgment and decree passed by the learned lower appellate Court is set aside. Since the lower appellate Court has not considered the merits of the case at all, I have no option but to remand the case to the learned District Judge, Ambala who is directed to decide the appeal on merits expeditiously and preferably within three months. The parties through their counsel have been directed to appear in the Court of the learned District Judge, Ambala on 12.4.1991.There will, however, be no order as to costs.