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Judgment
This revision petition is directed against the judgment dated 8/1/2019 passed by Addl.District Judge, Jaitaran, District Pali, whereby, the appeal filed by
the respondents against the order dated 12/10/2011 passed by the Civil Judge (Sr. Div.), Jaitaran has been allowed and the suit, which was dismissed
by the trial court as abated, has been restored.
The suit was filed by the six plainitffs including one Parasmal for cancellation of sale deed and permanent injunction inter alia with the submissions that
one Oswalo-ka-chowk was situated at Pipalian Kalan, which was being used by the plaintiffs from time immemorial and the same was not owned by
any one person. It was claimed that defendant Shanti Lal was not owner of the land in question, however, defendant Bhanwar Lal stated that he has
purchased the said Chowk from Shanti Lal on 5/1/1998 by registered sale deed and that he would raise construction. It was claimed that for the first
time on obtaining certified copy of the sale deed, the plaintiffs became aware of the said sale. It was averred that defendant Shanti Lal has no right to
transfer the land of Chowk, he was never in possession and, therefore, the sale deed was liable to be cancelled.
It was further alleged that the defendant no.2 was seeking to raise construction and, therefore, he be restrained from raising any construction on the
land of Chowk.
By way of amendment, it was claimed that in violation of temporary injunction order dated 22/2/2000, the construction raised, be demolished.
During the pendency of the suit, one of the plaintiffs - Parasmal died in the year 2007 and after four years an application under Order XXII Rule 3
CPC was filed to bring on record his legal representatives. The application was contested by the defendants and by order dated 12/10/2011, the trial
court observing that as the application was filed belated, without any reasonable cause and no application was filed seeking condonation of delay and
as the suit was for cancellation of sale deed and permanent injunction, wherein, all the plaintiffs had joint interest, in absence of legal representatives
of Parasmal, the same cannot be proceeded and consequently rejected the application under Order XXII Rule 3 CPC and dismissed the suit as having
become abated.
Feeling aggrieved, the plaintiffs and legal representatives of Parasmal filed appeal before the Addl. District Judge, Jaitaran. The appellate court by its
judgment came to the conclusion that as the steps were not taken for bringing on record the legal representatives of deceased Parasmal within the
period of limitation, the suit itself abated qua him and as no application was filed seeking setting aside of abatement and condonation of delay in filing
the application, the trial court was justified in rejecting the suit qua Parasmal. However, the appellate court also came to the conclusion that as all the
plaintiffs had separate right and had right to file separate suits, on account of death of one plaintiff and not bringing on record his legal representatives,
the entire suit could not abate as the suit pertained to a common Chowk and for right of way and consequently accepted the appeal and the order
dated 12/10/2011 was modified to the extent that suit qua Parasmal stood abated, however, rest of the plaintiffs could continue with the suit.
Feeling aggrieved, the present revision petition has been filed.
It is submitted by learned counsel for the petitioner that the appellate court was not justified in setting aside the order passed by the trial court
inasmuch as the plaintiffs had filed the suit for common cause and once the same stood abated qua Parasmal, the same could not be proceeded with
by other plaintiffs.
Submissions were also made that a look at the issues framed would indicate that the same were common to all the plaintiffs and once the issues were
common to all the plaintiffs, the abatement of suit qua one plaintiff would result in abatement qua all the plaintiffs and on that could also the judgment
impugned deserves to be quashed and set aside.
Reliance was placed on Badni & ors. vs. Siri Chand & Ors. : AIR 1999 SC 107 7and Babu Sukhram Singh vs. Ram Dular Singh & Ors. : AIR 1973
SC 204.
I have considered the submissions made by learned counsel for the petitioner and have perused the material available on record.
As noticed hereinbefore, the nature of suit was that several plaintiffs, who were essentially not connected to each other, filed the suit in relation to a
common Chowk claiming right to use the same and lack of any authority in defendant no.1 to transfer the same to defendant no.2. Further, permanent
injunction was sought from raising any construction over the said Chowk. The nature of suit was such wherein, all the plaintiffs had similar but
independent right to file the suit for cancellation of sale deed and injunction and, therefore, apparently the first appellate court was justified in coming
to the conclusion that on account of suit having abated qua one plaintiff, the same would not abate as a whole. The abatement of the suit as a whole in
case of several plaintiffs may arise in a given case where the plaintiffs are so interconnected that in case the suit abates qua one plaintiff, all the
plaintiffs would be bound, on account of such abatement and the suit would abate as a whole, which is not the circumstance in the present case.
The reliance placed by learned counsel for the petitioner on the judgment in the case of Babu Sukhram Singh (supra) has no application to the facts of
the present case inasmuch as in the said case the joint claim was against several defendants and legal representatives of many defendants were not
brought on record, which situation cannot be compared with the suit of present nature, where one of the plaintiffs had died and not the defendant.
Further, the case of Badni (supra) also has no application to the facts of the present case in view of the nature of the suit, wherein, in the present case
all the plaintiffs have similar but independent cause, however, they filed a common suit.
In view of the above discussion, no case for interference is made out in the judgment impugned. There is no substance in the revision petition and the
same is, therefore, dismissed.