Decided on July 26,1979



N.H.BHATT - (1.) An interesting question of law has arisen in this revision application filed by the original defendants Nos. 2 to 10 of the civil suit No. 102 of 1974 pending in the court of the Civil Judge (J.D.) Bardoli in Surat District.
(2.) A few facts require to be stated in order to highlight the controversial question raised before me in this application. The respondent Nos. 1 and 2 are the original plaintiffs of that suit. The said suit was filed by these respondents Nos. 1 and 2 against one Gokalbhai Narottambhai and the present nine petitioners for a declaration of their easement right of way for the purpose of human passage and passage for cattle and for the purpose of carrying agricultural implements. It was alleged in the plaint which was placed at my disposal by Mr. Bhatt for the petitioners that for the purpose of going to their fields S. Nos. 47 53 54 and 65 they had a right of way of all sorts through the field S. Nos. 58/3 belonging to the defendants Nos. 1 to 4 and the defendants Nos. 8 to 10 and also through the field 3 No. 58/2 belonging to the defendants Nos. 1 to 4 and through S. No. 43 belonging to the defendant No. 5. During the pendency of the suit the original defendant No. 1 Gokalbhai Narottambhai the brother of the petitioners Nos. 1 to 4 died. His heirs were not brought on record within time and therefore under Order 22 Rule 4 Sub-rule (3) the suit was declared to have abated against the said deceased defendant No. 1. The present petitioners Nos. 1 to 9 the original defendants Nos. 2 to 10 however requested the court to dismiss the whole suit on the ground that it had become an infructuous and incompetent split. The learned trial Judge did not agree and that is why the petitioners have moved this court by filing this revision application complaining that the learned trial Judge is hugging to the jurisdiction to try the suit inspite of his having none and that such an attempt on the part of the trial Judge is quite likely to cause irreparable injury to the petitioners and that the order if it had been made in favour of the petitioners would have finally disposed of the suit.
(3.) It is to be noted once for all that the suit cannot be technically said to have abated against these petitioners though that was the nomenclature employed by the petitioners before the learned trial Judge. However as far as their ultimate prayer is concerned it has not got any bearing whatsoever.;

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