Sahabram and Another vs Kahiram and Others

(1). This is an appeal filed under Section 225 of the Raj. Tenancy Act against the judgment of R.A.A. Hanumangarh passed in appeal No. 333/94 dated 11.7.95 by which judgment of Assistant Collector Sangriya dated 29.4.90 and 6.7.91 was set aside.

(2). Leading facts of this appeal are that it is alleged that Mamraj was adopted son of Sahabram through registered sale deed. Later on the Mamraj got married, subsequently he got two sons namely Tarachand and Krishanlal who are present respondent No.10 and 11 and mother was Rameshwari. Sahabram as adopted son filed one suit under Section 88/53/183 of the Rajas-than Tenancy Act was compromised and decreed on 29.11.90 by which Sahabram got 58.14 bigha land. During the trial of the suit there was receiver appointed and by virtue of the decree amount of receivership Rs. 52,800/- was ordered to be given to Mamraj present appellant No.2. However under the compromise decree the land of 14/12 KSD was left out. Hence review was filed by the present appellants (Sehabram and Mamraj) on the ground that in this compromise decree the land of 12/14 KSD in included. This review was allowed by the trial court on 6.7.91 and the land of 12/14 KSD was included. During this proceeding Kashiram, Maniram and Jitaram preferred an appeal to the R.A.A. which was accepted and the judgment of the trial court dated 6.7.91 was set aside and the matter-was remanded for its retrial. Aggrieved from this the present appeal is preferred.

(3). We have heard learned counsels for the respective parties and perused the record.

(4). In this appeal one application was presented on 7.4.2000 by the present petitioner that appellant No.2 Mamraj had expired and his legal representatives in the form of appellant No.1 has adopted son Sahabram and respondent No.10 and 11 namely Rameshwari widow of Mamraj, Tarachand and Krishanlal sons under the guardianship of Rameshwari are already on record therefore his name can be removed. This application was contested by the other side on the ground that widow Rameshwari has not been arrayed as party and one daughter Suman was also not made party. Mamraj expired on 12.3.97. No application within 90 days from the date of Mamraj to bring his legal representatives on record was filed. Thus he submits that appeal has abated.

(5). After careful examination of the submission made by the rival parties we are of the candid view that since it is borne out from the record that legal heirs of Mamraj are already and Tarachand and Krishanlal as proforma respondent No.10 and 11 as real sons under the guardianship of widow of Mamraj Rameshwari (these sons as party) because after taking adoption to Sahabram they have borne. Under these circumstances if one of the daughter Suman or Rameshwari is not made party in individual capacity then too appeal does not abate because of doctrine of sufficiency of representation applicable. In view of the ruling of Apex Court reported in Mahabir Prasad Vs. Jage Ram and Others, which says when a party respondent in an appeal dies and one of the legal representative is already on record in another capacity the appeal does not abate even though no application is made to bring them on record. This view was also adopted by the Board of Revenue in the reported case namely Chuli Bai vs. Vishanlal (1), according to which married daughter of deceased appellant held not necessary since they were not parties in suit nor in appeal as such their rights not effected. Out of five legal representatives of deceased three legal representatives already on record either as appellant or respondent hence doctrine of sufficiency of representation is applicable.

(6). In view of the obvious principle propounded by the Supreme Court of India we hold that appeal does not abate and application of the appellant dated 7.4.2000 is accepted. The appeal is listed for arguments on the merits on 25.8.2000.

(7). Pronounced in open court.