- (1.) HEARD learned counsel for the parties.
(2.) BY this revision petition under Section 115 C.P.C., the defendant-petitioners have challenged the order dated 22nd July, 2011 passed by learned Civil Judge (Sr. Div.) Kumher, District Bharatpur in Civil Suit no.101/1999 (292/2011) whereby the application filed by the Legal Representatives of plaintiff non-petitioner Jagdish Prasad for allowing them to continue with the suit despite death of plaintiff no.2 Shyam Lal and plaintiff no.3 Shiv Dutt has been allowed with the observation that infront of their names 'deceased' word along with a note by red ink be made that the suit on their behalf has been abated and right to sue survives to the legal representatives of plaintiff no.1. Briefly, stated the facts of the case are that in the year 1986, the original plaintiffs namely; Jagdish Prasad, Shyam Lal, Shiv Dutt, Brij Mohan and Munna @ Dharamveer all sons of Durga Prasad who own the disputed property along with two others namely; Hari and Daulat son of Bhagwan Das filed civil suit before the trial court for declaration and permanent injunction against the original defendants namely, Nathi Lal, ancestor of the present petitioner nos. 1/1 to 1/7 and petitioner no.2 Brijesh with the averments that the plaintiffs are in possession of the plot and the constructed house as described in para no.1 of the plaint. The original defendants illegally interfered in the possession of the plot described in para no.2 of the plaint. They obtained permission for construction on 9th May, 1963 but construction could not be raised on account of the dispute raised by them. It has also been avered in the plaint that on 28th March, 1923 the disputed land was purchased by the ancestors of the plaintiffs through sale deed for consideration of Rs.80/-. In the year 1970, a civil suit was filed by the plaintiffs against the Gram Panchayat in respect of their ownership and for grant of permanent injunction which was decreed by the Additional Civil Judge No.1, Bharatpur on 23rd September, 1983. It has also been averred in the plaint that the original defendants interfered with the possession of the said plot and in continuation thereof they constructed pillars on 22nd December, 1985 and started throwing garbage and they wanted to raise construction illegally and that they already opened gate towards their land. Therefore, the civil suit for declaration and permanent injunction was filed in respect of the land described in para no.2 of the plaint. It is not in dispute that during pendency of the suit, Shyam Lal, the original plaintiff no.2 expired on 20th July, 1988 and Shiv Dutt, the original plaintiff no.3 expired on 5th February, 2009 and their legal representatives were not brought on record. Therefore, on 15th December, 2010 an application under Order 22 Rule 2 C.P.C. was filed on behalf of the original plaintiff Jagdish Prasad, Ram Chand and Ashok Kumar son of Shyam Lal with the averments that since the original plaintiffs namely, Shyam Lal and Shiv Dutt have expired therefore, right to continue the civil suit survives in Jagdish Prasad, plaintiff No.1 who is already on record. A reply to the said application was filed on behalf of the defendant petitioners. It was submitted in the reply that the plaintiffs are the sons of Durga Prasad and on account of death of Shyam Lal and Shiv Dutta and further due to not filing any application for bringing on record their legal representatives, the entire suit abates. Therefore, it was was prayed that the application be dismissed. There is no dispute between the parties that plaintiff no.1 Jagdish Prasad died on 6th July, 2001 and his legal representatives have been brought on record as respondent nos.1/1 to 1/7.
(3.) THE trial court after hearing both the sides and considering the aforesaid arguments of counsel for both the sides came to the conclusion that right to sue survives in the legal representatives of Jagdish Prasad (1/1 to 1/7) who have already been brought on record. THErefore, the entire suit will not abate on account of death of plaintiffs Shyam Lal and Shiv Dutta and word 'deceased' be mentioned in front of their names by red ink and right to sue survives to the legal representatives of Jagdish Prasad who have been made plaintiff nos. 1/1 to 1/7. Thus vide order dated 22nd July, 2011 the trial court allowed the application of the plaintiff-non-petitioners, which has been impugned in the revision petition. Submission of the counsel for the defendant-petitioners is that since the property cannot be separated, therefore, on account of death of plaintiff Shyam Lal and Shiv Dutta and on account of not bringing on record their legal representatives, the entire suit has been abated. He further submits that in the facts and circumstances of the case, no decree can be passed when the property is joint. Submission of Mr. Sajjan Raj Surana, Sr. Advocate, learned counsel for the original plaintiff nos.1 to 3 is that the original plaintiffs are the jointly in possession of the property and the right to sue survives in the legal representatives of plaintiff Jagdish. Therefore, the trial court has not committed any kind of error in allowing the application. In support of his submissions, learned counsel for the plaintiff-non-petitioners has placed reliance on the judgments of this Court in the matter of Kesrichand & Ors. vs. Chandanmal and another (AIR 1959 Raj. 58), in the matter of Sharvan Lal & Ors. vs. Bundu Khan { 1997(3) WLC (Raj.) 449} and the judgment of the Supreme Court in the matter of State of Haryana & Ors. vs. Gurucharan Singh & Ors. {(2004)12 SCC 540}. ;