1. This appeal under Section 100 of the Code of Civil Procedure is at the instance of the original plaintiff who had filed Civil Suit No.55 of 1978 against the respondents for declaration that the appellant is owner of Khanchali land of 17x1 Sq. Ft. and the respondents have got no right or title over such Khanchali land and the respondents have unauthorizedly encroached upon and taken possession of such Khanchali land and therefore, the respondents be directed to handover possession of such Khanchali land.
2. The suit of the appellant was allowed by judgment and decree dated 31.12.1982 and the respondents were directed to handover possession of such Khanchali land to the appellant. Against judgment and decree passed by learned Trial Judge, only respondent No.1- original defendant No.1 had preferred Civil Appeal No.13 of 1983. Learned Appellate Judge allowed the said appeal of respondent No.1 by judgment and decree dated 25.9.1990 and quashed and set aside the judgment and decree passed by learned Trial Judge.
3. As could found from the record of the case, respondent No.3 passed away in the year 1990, respondent No.2 passed away on 6.1.1991 and respondent No.1 passed away in the year 1993.
4. This Court on 17.9.2012, passed following order:-
“It is stated before the Court that respondent No.3 has expired in the year 1990 and the respondent No.1 has expired in the year 1993. However, learned advocate for the appellant has not taken any steps for brining the legal heirs of the deceased respondents on record. Learned advocate Mr.Vishal Mehta for learned advocate Mr.A. J. Shastri for the appellant states that in fact for aforesaid two deceased respondents, two applications were filed, but the office has not circulated those applications till today. As per the endorsement of the office, in fact, the respondent No.2 has also been shown as expired. Learned advocate for the appellant has not pointed out as to whether in respect of the respondent No.2, any application is filed or not for bringing the legal heirs of the respondent No.2 on record. Learned advocate for the appellant has stated that he may be given very short time to find out from the office as to whether the applications qua the respondent Nos.1 and 3 were filed for bringing legal heirs on record, and as to why those applications are not circulated. He also seeks time to take further instructions for the purpose of taking steps to bring on record the heirs of the deceased respondents.
In view of the above, the matter is now adjourned, as a last opportunity to take necessary steps whatever the learned advocate for the appellant wants. If no immediate steps are taken, the Court shall have no option, but to proceed with the matter. Hence, the matter is adjourned to 24th September 2012.”
5. Thereafter, the appellant had moved one application, being Civil Application No.12223 of 2012, praying to permit the appellant to reconstruct papers of Civil Application alleged to have been filed in the year 1993 for the purpose of bringing heirs of respondent No.1 on record of the Second Appeal. In the said Civil Application, this Court had passed order dated 1.11.2012, as under:-
“Office is directed to verify as to whether the Civil Application, reconstruction of which is prayed for, was filed.
S.O. to 7th November 2012.”
6. Thereafter, office, on verification, reported that no such application was ever filed by the appellant. Therefore, this Court on 7.11.2012, passed further order as under:-
“1. Order of this Court dated 1.11.2012 reads as under:
“Office is directed to verify as to whether the Civil Application, reconstruction of which is prayed for, was filed.
S.O. to 7th November 2012.”
2. Pursuant to above said order, office has submitted report dated 6.11.2012 stating that there was no such civil application filed as stated in the present application. In view of this report of the office, this Civil Application is required to be rejected. Hence, same is rejected and disposed of.”
7. Thus, neither for respondent No.1 nor for other respondents, who had expired in the year 1990 and 1991, any application for bringing heirs of those expired respondents was filed.
8. Learned advocate Shri Vishal Mehta for learned advocate Mr. Shastri appearing for the appellant states that the first appeal was filed only by respondent No.1, who was defendant No.1, and other defendants had not preferred any appeal and therefore, either they or their heirs would still be governed by the judgment and decree passed by learned Trial Judge. He submits that at the best, on expiry of respondent No.1, cause in this appeal may not survive because the first appeal was only at the instance of respondent No.1.
9. It is true that the first appeal was filed only by respondent No.1. However, respondent No.1 has expired in the year 1993 and as on today, heirs of respondent No.1 have not been brought on record.
10. In view of the above, the appeal stands abated against respondent No.1. Since the first appeal was preferred only by respondent No.1, appeal against the other respondents would not survive. Thus, in the result, the appeal stands disposed of accordingly.
omkar Sd/-
(C.L. SONI, J.)