Tejo deceased through Lrs. Amarjit Kaur vs Yashpal

The present regular second appeal has been maintained by the appellants, who were the defendants before the learned trial Court (hereinafter to be called as "the defendants"), against the judgment and decree, dated 12.12.2005, passed by the learned Additional District Judge, Fast Track Court, Una, in Civil Appeal No. 104/2K RBT 15/4/2K, whereby the judgment and decree, dated 02.06.2000, passed by learned Sub-Judge, Court No. 1, Una, District Una, H.P., in Civil Suit No. 78/90 of 2000, was set aside and suit of the plaintiff was decreed with costs.

The defendants, by filing written statement, contested and resisted the suit of the plaintiff by taking various preliminary objections.

The learned Trial Court on 16.10.1992, framed the following issues for determination and adjudication: "1. Whether the plaintiff has become owner of suit land by afflux of time and mutation of redemption i.e. No. 6458 dated 25.08.1984 is illegal, null and void as alleged? OPP.

Whether the suit is not within time? OPD.

Whether the plaintiff has no locus standi to file this suit? OPD.

Whether the plaintiff is estopped to file this suit by his act and conduct? OPD.

Whether the plaintiff has no cause of action to file this suit? OPD.

Whether this Court has no jurisdiction to try this suit as alleged? OPD.

Whether the suit is barred by principle of resjudicata as alleged? OPD.

Relief."

After deciding issue No. 1 in negative, issues No. 2 to 5 in affirmative and issues No. 6 & 7 were not pressed, the suit of the plaintiff was dismissed. Subsequently, the plaintiff preferred an appeal before the learned Lower Appellate Court, which was decreed with costs. Feeling aggrieved by the decision of learned Lower Appellate Court, the defendants have preferred present regular second appeal.

Today when the matter was taken up for consideration, it is brought to the notice of this Court that defendants No. 2 (Sarwan Singh) and 3 (Rakha), which are being represented by their legal heirs in the present regular second appeal, had expired on 27.06.2003 and 07.10.2001 respectively, during the pendency of the appeal before learned lower Appellate Court and their legal representatives were not brought on record in the respective Court.

It is settled proposition of law that where a party dies and pending suit/appeal and judgment/decree is passed in ignorance to such death, the question of substitution of heirs and setting aside the abatement, if any, can only be considered by the Court, before whom the suit/ appeal was pending when defendant(s)/respondent(s) expired.

In the present case, deceased Sarwan Singh and Rakha have expired, when the appeal was pending before the learned lower Appellate Court, hence the question of substitution of heirs and setting aside the abatement, if any, is to be decided by the same Court. Therefore, the judgment and decree, passed by learned lower Appellate Court is set aside and the present case is remanded back to the learned lower Appellate Court to decide the issue of abatement afresh. Parties to appear before learned lower Appellate Courts on 29th December, 2017.

In view of the aforesaid discussions, the appeal, as also pending application(s), if any, shall stand(s) disposed of.