Decided on June 04,1999

Sohan Lal Khorana Appellant
S Sampuran Singh Respondents


- (1.) THE short question which this court is called upon to consider in this appeal is whether after the death of Beeru Ram one of the plaintiffs cause of action survives to the surviving plaintiffs. The question arises in the backdrop of the following facts: -
(2.) A suit for possession of 26 kanals and 10 marlas of land comprising kh. No. 286,268 -min and 286 -min situate in village Satwari was instituted by Beeru Ram son of Nathu Ram, Sampuran Singh and Amar Singh sons of Foja Singh against Sohan Lal Khorana. As per averments made in the plaint, the plaintiffs claim for restoration of possession is authenticated on the plea that they were joint tenants of the land measuring 38 kanals 10 marlas including the suit land as the same was leased to them in the year 2005. Defendants it was further averred occupied suit land forcibly some time in the January 1969 by manipulating entries in the revenue recorded with the collusion of revenue officers.
(3.) WHILE the suit was pending plaintiff Beeru Ram died. The judgment of City Judge dated 24 -01 -1983 reveals that an application for bringing on record the legal heirs of plaintiff Beeru Ram was filed on 19 -04 -1978, but it was dismissed on 21 -04 -1979 for non -prosecution. Later by judgment and decree dated 24 -01 -1983 the trial court dismissed the suit holding that the cause of action being joint and individual it did not survive in favour of the surviving plaintiffs. The appeal preferred against the judgment and decree was dismissed by the 1st Additional District Judge, Jammu on 16 -05 -1983 and the High Court dismissed the second appeal on 20 -04 -1984. These finding were however, reversed by their lordships of the Supreme Court on 20 -02 -1985 and the case remanded with the following directions: - We have heard counsel for the parties. It appears that the trial court has not decided the question whether the suit could abate wholly or in part. We, therefore, remand the case to the trail court to give clear finding on this issue. If it is found that it has not abated on the whole, it shall be disposed of on merits. It will, however, be open to the parties to agitate all other questions including question regarding agrarian reforms and all other legal points. There will be no order as to costs. The parties are directed to appear before the trial court on 26th March 1985.  After hearing the parties, learned City Judge again vide judgment and decree dated 27 -01 -1987 held that the cause of action being joint and indivisible, the suit abates as a whole. The plaintiff challenging this judgment in appeal which the learned 2nd Addl. District Judge allowed by his judgment and decree dated 01 -06 -1988 holding that even in case of joint tenancy, right to sue will survive against the trespasser in favour of the surviving plaintiff without implement of the legal heirs of the deceased -plaintiff. In support of this, learned 1st appellate court relief on the decision of this court reported in 1972 KLJ 59.;

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