J.V.GUPTA,J. - (1.) ONE Santa Singh was the owner of 59 Kanals 12 Marlas of land. He was not heard of for the last 12 years prior to 10.3.1970. Santa Singh had one daughter Harnam Kaur who died in July, 1956, leaving behind her husband Mehar Singh, her sons Balwant Singh and Major Singh and daughters Babli, Phinno alias Parsino, Sodhan and Guddi. Mutation regarding inheritance of Santa Singh was sanctioned in favour of Partap Singh defendant who was his nephew, i.e., the brother's son. The sons, daughters and the husband of Harnam Kaur filed the suit for possession of the land owned by Santa Singh on the ground that they were the heirs of Santa Singh and mutation was wrongly sanctioned in favour of Partap Singh. They alleged that Santa Singh was not heard of for the last 12 years and he should have been deemed to be dead. Mutation should have been sanctioned in their favour as they were the heirs of Santa Singh and not in favour of Partap Singh.
(2.) THE suit was contested by Partap Singh on various grounds. The trial Court dismissed the plaintiff's suit vide its judgment dated 6.7.1971. The plaintiffs preferred an appeal against the said judgment and decree of the trial Court and, vide order dated 31.1.1976, the appeal was allowed and a decree for joint possession of the land was passed in favour of the plaintiff. However, during the pendency of the appeal, Partap Singh died and a regular second appeal was filed against the judgment and decree of the Additional District Judge, Faridkot, by the legal representatives of Partap Singh. In the High Court, an application was filed on behalf of the defendants under Order 41, Rule 1, Code of Civil Procedure, to the effect that, during the pendency of the appeal before the Additional District Judge, Faridkot, Smt. Phinno alias Parino (one of the plaintiff-appellants) had died and her legal representatives were not brought on the record and, therefore, the appeal stood abated. The High Court found that the matter regarding abatement was to be considered by the first appellate Court and, therefore, the regular second appeal was accepted, the judgment and decree of the lower appellate Court was set aside and the case was sent back for deciding the plaintiff's appeal afresh. When the case came up for hearing before the lower appellate Court, an application for amendment of the written statement was filed by the defendants. Thus, there were two questions before the lower appellate Court (i) whether the appeal abated as a whole or in part for not bringing the legal representatives of Smt. Phinno alias Parsino on the record within the time prescribed by law ? and (ii) whether the defendants were entitled to seek amendment of their written statement ? The learned District Judge came to the conclusion that, on the death of Phinno alias Parsino when her legal representative were not brought on the record within the prescribed period, the appeal to the extent of her one-seventh share in the property, in question, abated. The other plaintiffs could pursue the appeal to the extent of their shares and there is no question of passing any conflicting decrees amongst the heirs of Santa Singh. Consequently, the question of abatement was decided accordingly. However, the application for amendment of the written statement was allowed on payment of Rs. 300/- as costs, vide order dated 22.2.1986. Dissatisfied with the same, the defendants have filed this petition in this Court.
(3.) THE only question to be decided in this petition is as to whether the appeal abated in toto on the death of Smt. Phinno alias Parsino or it abated only to the extent of her share, as held by the learned District Judge. According to the learned counsel for the petitioners, in case the appeal filed by the other appellants is allowed to continue, there will be two conflicting decrees and therefore, under circumstances, the appeal will abate as a whole. In support of his contention, he referred to State of Punjab v. Nathu Ram, AIR 1962 SC 89; Godha Ram and others v. Chudara Ram and another, 1966-68 (Supplement) PLR 415; and Ramagya Prasad Gupta and others v. Murli Prasad and others, AIR 1972 SC 1181. On the other hand, learned counsel of the plaintiff-respondents referred to Mst. Dhan Kaur and others v. Smt. Bhan Kaur and others, 1986 Punjab and Haryana 178.;