Jainendra Kumar Ranka, J. - (1.) INSTANT revision petition is directed against the order dt. 11/10/2011 passed by the Additional District Judge, Laxmangarh, District (hereinafter referred as 'Lower Appellate Court') in Civil Misc. Appeal No. 2/2006 dismissing the appeal of the defendant -petitioner and upholding the order dt. 19/12/2005 of partial abatement passed by the Additional Civil Judge, Laxmangarh (Senior Division) (hereinafter referred as 'Trial Court') in Civil Suit No. 39/2003, titled as Cheenta Ram v. Bhamlaya Ram & Ors. Brief facts of the case are that the plaintiffs -Cheenta Ram, Ramji Lal and Gyarsa filed a suit for declaration against one Bhamlaya Ram and Chander (defendants No. 1 & 2) respectively seeking a declaration that the will dt. 28/11/1997, alleged to be executed by one Sukh Pal, was void and ineffective vis   -vis plaintiffs -respondents. During pendency of the suit, one of the defendant's namely; Bhamlaya died, and whereupon the plaintiffs -respondents moved an application under Order 22 Rule 4 CPC alongwith Sec. 5 of the Limitation Act for bringing the legal heirs of Bhamlaya Ram on record. The trial Court refused to condone the delay in filing the application for substitution of L.Rs. of Bhamlaya Ram but held by order dt. 19/12/2005 that the suit did not abate in toto but only to the extent of the deceased Bhamlaya Ram.
(2.) THIS order of partial abatement was challenged by the other defendant namely; Chander before the Lower Appellate Court and the Lower Appellate Court vide order dt. 11/10/2011 dismissed the appeal and upheld the order of partial abatement passed by the Trial Court. It is this order dt. 11/10/2011, affirming the order dt. 19/12/2005, which is challenged by the defendant -petitioner -Chander (since deceased and represented by his legal representative Mangal Ram) by way of this instant revision petition. Mr. L.L. Gupta, learned counsel for the defendant -petitioner vehemently contended that the lower appellate Court as well as the trial Court committed serious jurisdictional error in concluding that the suit had become partially abated only to the extent of the defendant -Bhamlaya Ram and not against the other defendant -Chander, the petitioner herein. He contended that both the defendants based their defence against the suit of the plaintiff upon the Will dt. 28/11/1997 of Sukh pal and the Will stood upheld by virtue of abatement of the suit against Bhamlaya Ram, consequently, all the defendants were jointly entitled to the property covered under the will. The relief, being joint and inseparable, and as such, the suit stood abated as against all the defendants. Counsel for the defendant -petitioner relied upon judgments in the case of Budh Ram & Ors. v. Bansi & Ors., reported in : 2011 CDR 236 (SC); Amar Singh & Ors. v. Lal Singh & Ors., reported in, (1997) 11 SCC 570 and the case of Babu Sukhram Singh v. Ram Dular Singh & Ors., reported in : AIR 1973 (SC) 204.
(3.) PER -contra, Mr. Aatish Jain, counsel for the plaintiffs -respondents, justifying the impugned orders, contended that there was no jurisdictional error committed by the Courts below and the order of abatement against one defendant -Bhamlaya, did not have the effect of rendering the suit abated in toto for the claim of both the defendants were distinctive, separate and independent. Counsel for the plaintiffs -respondents submits that the revision petition is not maintainable.;