- (1.) A. N. Verma, J The petitioner, along with one Hari Singh instituted a suit, being suit No. 172 of 1974, against the opposite parties No. 4 to 17 i. e. defendants, for possession after ejectment of the said defendants from over the property in question. It was further prayed that the defendants be directed not to demolish the construction raised on the land in dispute marked as Letters A, B, C and D.
(2.) THE case set up by the plaintiffs was that the land in question was owned and possessed by one Liaqat Ali Khan, who migrated to Pakistan and the property was declared as evacuee property. By virtue of sale-deed dated 13-2-1968 executed by Union of India in favour of petitioner as well as Hari Singh, they became owner having acquired title as aforesaid. Since the defendants were in illegal occupation of the property from the time of its erstwhile owner and the plaintiffs having acquired the title to the same instituted a suit for ejectment. Some of the defendants filed their statements and refuted the claim of the plaintiffs. One of the plaintiffs i. e. Hari Singh died on 22-10-1981. A Will was said to have been executed by the deceased on 21-6-1981 in favour of the petitioner. THE petitioner on 17-8-1982 made an application under Order XXII, Rules 2 and 3 of the Code of Civil Procedure alleging therein that as one of the plaintiff has died and he being the Co-sharer had a right to proceed with the Suit. It was further alleged that even otherwise there being a Will in his favour he was legal heir of the deceased. THE opposite parties filed objections alleging therein that as application for substitution had not been filed within time prescribed and the Will said to have been executed in favour of petitioner being fictitious and invalid the suit abated. The trial Court vide its judgment and order dated 27-5- 1983 allowed the objections preferred by the opposite parties and abated the suit in its entirety. Being aggrieved, petitioner filed an appeal before the District Judge. The Additional District and Sessions Judge, Court No. (7) Muzaffar Nagar, vide its judgment and order dated 22-3-2003, dismissed the appeal. It is against the said orders passed by the learned Courts below that the petitioner approached this Court through the present writ petition. I have heard Shri B. D. Mandhyan, learned Senior Advocate, for the petitioner as well as Shri A. K. Srivastava, learned Counsel for the opposite parties.
(3.) SHRI Mandhyan submitted that the judgment and orders passed by the learned Courts below suffer from manifest error of law inasmuch as the trial Court fell in grave error in abating the suit. As per his submission the suit having been filed by both petitioner as well as Hari Singh as co-owners of the property in question and one of the plaintiff having died, the right to sue survives upon the remaining plaintiff. He further submitted that Hari Singh having executed a Will on 21-6-1981 in favour of the petitioner by virtue of which he succeeded to the share of the deceased and there being no other application for substitution, therefore, the right to sue survived upon the petitioner. He further submitted that the learned Courts below had absolutely no jurisdiction to go into the question of validity of the Will as the same was subject-matter to be decided in the course of the proceedings and not while prayer for abatement was being dealt with. On the said premise, according to him, judgment and orders passed by both the Courts below, thus deserve to be set aside. Shri Srivastava, in opposition argued that after the death of Hari Singh, there was no cause of action left with the petitioner as both being Co-owners and the property having not been partitioned it could not be defined as to over which portion of the plots in question decree of possession was to be passed and against which of the defendants relief could be given. He further submitted that one of the plaintiffs having died and there being no application for substitution within time prescribed, the entire suit abates and the trial Court as well as appellate Court have rightly come to the conclusion to the same effect.;