- (1.) S. U. Khan, J. At the time of arguments no one appeared on behalf of respondents, hence only the arguments of the learned Counsel for the petitioner were heard.
(2.) COPY of plaint, had not been annexed along with the writ petition. It was supplied and taken on record on the date on which arguments were heard. Petitioner filed Original Suit No. 49 of 1971 before Munsif Mohammadabad Gohna District Azamgarh. In the suit there were two defendants Munsafi and Mohammad Mustafa-both real brothers. Munsafi defendant No. 1 in the suit filed an application on 7-8-1975 stating therein that Mohammad Mustafa, defendant No. 2 had died on 1-5-1972 and as no substitution application had been filed, hence suit had abated. Thereafter on 20-8-1975 petitioner filed an application. In the said application it was stated that Mohammad Mustafa had died issue less leaving behind only defendant No. 1, his real brother as his surviving legal representative, however, Nizamuddin, Shamshuddin and Sadruddin wrongly claiming to be sons of Mohammad Mustafa had got their names mutated in the revenue records,hence they might be added in the suit as defendants No. 2 to 4. After five years of the filing of the said application i. e. on 9-12-1980 another application was filed by plaintiff-petitioner reiterating the contention of the earlier application to the effect that the aforesaid three persons were not legitimate sons of Mohammad Mustafa, however, to avoid any future dispute application to implead them had already been filed. Through the application dated 9-12-1980 it was prayed that in case earlier application filed in August, 1975 was held to be beyond time then delay might be condoned. No application for setting aside abatement was filed. Trial Court rejected the applications through order dated 25-3-1981 and by the same order directed the file to be consigned to the record room. The effect of the said order was that the suit was dismissed as abated against defendant No. 2 and it stood dismissed as incompetent against defendant No. 1. It was, in fact a complete decree dismissing the suit in its entirety. Against the said judgment and decree Civil Appeal No. 261 of 1981 was filed which was dismissed on 30-10-1981 by District Judge, Azamgarh, hence this writ petition. Both the Courts below found that the aforesaid three persons were legal sons of Mohd. Mustafa. It was also found by both the Courts below that petitioner had full knowledge of death of Mohd. Mustafa. In any case substitution application had been filed in August, 1975, but it was not accompanied by application for setting aside abatement and application for condonation of delay in applying for the same. In any case even in the application dated 9-12-1980, copy of which is Annexure '4' to the writ petition, no prayer for setting abatement was made.
(3.) I, therefore, find absolutely no error in the impugned judgments of both the Courts below in respect of dismissal of suit as abated against defendant No. 2 Mohd. Mustafa. However, judgments of the Courts below are erroneous in law in so far as suit against defendant No. 1 has also been dismissed by them. In the plaint, the main prayer i. e. prayer No. 1 is of permanent prohibitory injunction seeking to restrain the defendants from interfering in the possession of the plaintiff over the land in dispute. The second prayer is that in case plaintiff is not found to be in possession, then he must be given possession. Suit for permanent prohibitory injunction does not become incompetent upon the death of some of the defendants and non-substitution of their legal representatives. In case plaintiff proves that he is in possession and has got a right to remain in possession then only defendant No. 1 may be restrained from interfering in his possession. However, as far as the alternative prayer for possession is concerned, in case after trial it is found that sons of defendant No. 2 Mohd. Mustafa are also in possession then no decree for possession against them in favour of the plaintiff can be passed. Accordingly writ petition is allowed in part. The impugned orders in respect of dismissal of suit as abated against Mohd. Mustafa defendant No. 2 are maintained. However, impugned orders in so far as they relate to dismissal of the entire suit are set aside. It is held that the suit survives against defendant No. 1 alone. Defendant No. 1 died during the pendency of writ petition and his heirs have been brought on record in the writ petition.;