JUDGMENT - S.B. MHASE, J.:---This Civil Revision Application has been filed challenging the order of the III Additional District Judge, Nanded in Misc. Civil Appeal No. 207 of 1986 decided on 21-4-1989. 2. The matter arises out of an order passed below an application for bringing the heirs of defendant No. 3 Sambha on record from the Special Civil Suit No. 63 of 1971. The application at Exhibit 39 and 48 have been filed by the plaintiff present petitioner. In Exhibit 39 it was informed that the suit was stayed pending reference to the Tenancy Court. During the pendency of the reference, original defendant No. 3 Sambha died and his legal heir Sumanbai was brought on record. It was also informed that he had no issue and the other heir namely Tanyabai the mother of deceased Sambha is already on record, and therefore, the name of Sumanbai be taken on record. By application Exhibit 48 the same request was repeated and therefore it was requested that the abatement be set aside and the legal heirs be brought on record. The said applications were rejected by the learned Civil Judge, Senior Division, Nanded by order dated 24-10-1986 and it was decided that as a result of failing to bring the heirs of deceased Sambha on record, the total suit has abated. That order was challenged by the plaintiff-petitioner by filing Misc. Civil Appeal No. 207 of 1986 which was allowed by the III Additional District Judge, Nanded. The orders below Exhibit 48 and 63 were set aside and it was directed to proceed further in the absence of any legal representative of deceased defendant No. 3. The said order has been challenged by the defendants. 2-A. The learned Counsel Shri B.B. Lakhkar, appearing for the petitioner-defendant No. 3 submitted that original person from whom the property was inherited was one Narba and that the property in the hands of defendant including deceased defendant Sambha was joint property and therefore after death of Sambha the right to sue does not survive; not only as against Sambha but as against all co-owners namely defendants and thereby the trial Court has rightly decided the whole cause of action as abated and in order to point out this aspect of the matter, the learned Counsel tried to analyse the findings. 3. Mr. 3. Mr. Murar Deshpande, learned Counsel appearing for the respondents original plaintiffs submitted that the right to sue survives in the present matter because proprietary rights of the parties were involved and the suit was competent even in the absence of deceased Sambha because the property was joint and all the defendants were tenant in common in the suit property and therefore, the suit as against one of them was equally competent. He pointed out that after the death of Narba, names of his three brothers appeared in the array of defendants so also three sons of Narba including Sambha are also parties and the wife of Narba i.e. the mother of deceased Sambha was also party. Thus he submitted that even if the defendants claim that they are the joint family, each of the branch of the joint family has been rightly represented. Not only that but if the defendants contend ultimately that if it is proved that the same is exclusive property of Narba in that eventuality also presently two brothers of Sambha are on record and thereby the estate of Narba and/or estate of deceased Sambha has been properly represented. Therefore the cause of action survives and suit could proceed as against remaining defendants in the absence of legal representatives. 4. The facts as emerged can be stated, in nutshell as follows : The Civil Suit No. 63 of 1971 has been filed for recovery of possession of the land bearing Survey No. 3 to the extent of western half portion admeasuring 16 acres and 20 gunthas. The said property has been purchased by the present plaintiff, while Narba from whom the defendants have inherited the property was the tenant in the said land and also a mortgagee. Thus in short the present plaintiff purchasers are the purchasers of equity of redemption and thereby they are entitled to claim the possession of the property. The suit is for recovery of possession as against all the defendants. Right to sue as plaintiff is based on right to redeem the property and get possession of the said property on the basis of the said title to the property, and therefore, that was a right available to the plaintiff basically as against Narba and thereafter as against the present defendants. Right to sue as plaintiff is based on right to redeem the property and get possession of the said property on the basis of the said title to the property, and therefore, that was a right available to the plaintiff basically as against Narba and thereafter as against the present defendants. It is interesting to note that after the death of Narba the names of Purbhaji and Pandurang who happened to be the brothers of Narba and Shankar Baba and Sambha who happen to be the son of Narba alongwith the wife Tanyabai were entered in the record of rights and therefore, the plaintiff-respondents have filed the suit as against all the defendants. Whatever may be the rights of the defendants inter se we are not presently concerned with that because this Court has to consider the right to sue which the plaintiff is possessed of stated based on title to the property and therefore, those who are in possession of the property will have to be evicted. All those defendants claim right to the said property through, Narba and therefore they stand in the shoes of Narba. In the final analysis it will be revealed that all the defendants are tenant in common, and therefore, the suit as against one of them is competent. They belong to joint family and therefore all the branches of joint family have been properly represented. Assuming that it belongs to joint family of Narba and his brothers and/or exclusively belonging to the joint family of Narba, his sons and wife and therefore it is evident that in the absence of deceased Sambha the suit could have been filed therefore, the cause of action survives as against the remaining defendants. 5. Mr. B.B. Lakhkar, while pointing out has relied on A.I.R. 1924 Nagpur 123 (Ratanlal v. Jaideo)1, wherein it has been observed: "The test to determine whether the appeal abated if the representative of one of the respondent being not brought on record is "could the suit ab initio have been instituted and prosecuted with the deceased being left out." and he tried to submit that it was not possible to institute the suit in the absence of deceased Sambha and therefore, the whole cause of action has been abated. With due respect to the learned Counsel, this proposition does not help him in the facts and circumstances of the present case. With due respect to the learned Counsel, this proposition does not help him in the facts and circumstances of the present case. On the contrary as analysed earlier, it points out that the suit could have been filed in the absence of Sambha, and therefore, the suit could not have abated as against rest of the defendants. The learned Counsel further relied on A.I.R. 1973 S.C. 204 in the case of (B.S. Singh v. R.D. Singh)2, wherein it has been observed as under : "Where a joint claim against several defendants is made in a suit and during the pendency of appeal by the plaintiff some of above are the defendants died and no separate claim is made against any of the defendants in appeal, the failure of the plaintiff to bring on record their legal representative results in abatement of appeal." 6. The facts in this case are different. Here in this case the permanent injunction against 49 defendants was claimed directing them to demolish the construction in dispute on the land mentioned in item B of the plaint and further direction was sought from the Court that all the defendants to fill-up the pits and nalas mentioned in item B of the plaint. Thus it was a suit for mandatory injunction and the claim made against all the defendants. However, in the present matter this is not a joint claim as against the defendants, and therefore, taking into consideration the facts of this case the same is not applicable. The learned Counsel has further relied on the judgment reported in A.I.R. 1962 S.C. 89 in the case of (State of Punjab v. Nathu Ram)3. Here in this case the land belonging to two brothers was acquired by the Government and on their refusal to accept the compensation the Government has referred the matter to the Arbitrator. The order of Arbitrator was challenged by the Government and during the pendency of the appeal one of the brother died and his legal heirs were not brought on record. The Apex Court held that whole cause has abated. The facts in this case are also different because claimants were brothers and the decree was joint and therefore, the appeal abated. The Apex Court held that whole cause has abated. The facts in this case are also different because claimants were brothers and the decree was joint and therefore, the appeal abated. Having found that the cases referred to above are not applicable to the facts of the present case, it requires to be mentioned that the learned Counsel Shri Murar Deshpande, appearing for the respondents relied upon the judgment reported in A.I.R. 1967 S.C. 1124 (Girjanandini v. Bijendra Narain)4, and pointed out the following observations made by the Apex Court: "A claim of rendition of account is not a personal claim. It is not extinguished because the party who claims an account or the party who is called upon to account dies. The maxim "actio personalis moritur cum persona" a personal action dies with the person, has a limited application. It operates in a limited class of actions ex delicto such as actions for damages for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief granted would be nugatory. An action for account is not an action for damages ex delicto, and does not fall within the enumerated classes. Nor is it such that the relief claimed being personal could not be enjoyed after death, or granting it would be nugatory. Death of the person liable to render an account for property received by him does not, therefore affect the liability of his estate." 7. Thus the Apex Court has noticed that right to sue does not survive only in limited area wherein the actions are personal and the right to sue extinguishes with the death of the party has limited application. Thus the Apex Court has noticed that right to sue does not survive only in limited area wherein the actions are personal and the right to sue extinguishes with the death of the party has limited application. The learned Counsel further relied on the judgment reported in A.I.R. 1988 S.C. 2121, in the case of (Collector of 24 Parganas v. Lalith Mohan Mullick)5, wherein the Apex Court observed as under : "This Review Petition has been instituted on the plea that original respondent No. 2 Smt. Sibadasi Mullick, widow of Shrikrishna Mohan Mullick had died during the pendency of the appeal in this Court and that original respondent No. 5 Smt. Kamalini Mullick, widow of Shri Khirode Mohan Mullick had also died during the pendency of appeal in this Court which was disposed of on merits by a judgment and order dated February 13, 1986 reported in (Collector 24 Pargana v. Lalit Mohan Mullick)6, A.I.R. 1986 S.C. 622, after hearing the parties. So far as Smt. Sibadasi Mullick, widow of Shri Krishna Mohan Mullick is concerned, her two sons viz. Lakshmi Kanto Mullick and Nilkanto Mullick were already on record as respondents Nos. 3 and 4. Therefore, the estate of the deceased was sufficiently represented before this Court. So far as respondent No. 5 Smt. Kamalini Mullick widow of Shri Khirode Mohan Mullick is concerned, her son Ramendra Mullick was already on record as respondent No. 6. In her case also the estate was sufficiently represented. Under the circumstances it is not possible to uphold the plea that the appeal had abated and the judgment on merits rendered by this Court on February 13, 1986 requires to be set aside on this ground." 8. Thus this case points out that if the estate of deceased is represented by the parties who are on record, the right to sue survives and the matter does not abate. The learned Counsel further relied upon the judgment reported in 1990(2) Bom.C.R. 330 : 1990 Mh.L.J. 906 in the case of (Krishnakant v. Dy. Charity Commissioner)7. Here in this case while considering the scope of Order XXII, Rule 4, this Court has observed in para No. 8 as follows : "8. Even if it were to be held that the provisions of Order 22, Rule 4 of the Code of Civil Procedure applies even then the present proceedings cannot be said to have abated. Charity Commissioner)7. Here in this case while considering the scope of Order XXII, Rule 4, this Court has observed in para No. 8 as follows : "8. Even if it were to be held that the provisions of Order 22, Rule 4 of the Code of Civil Procedure applies even then the present proceedings cannot be said to have abated. The proceedings which were initiated by the trustees and interested parties were opposed by the appellant and his deceased mother Gulabbai. It is undisputed that the appellant is one of the heirs of his mother and he is already on record. In such a case the right to sue survives and there can be no abatement especially when the estate of the deceased is adequately represented." 9. Thus on analysis on the basis of the ratio laid down in the above referred judgments it will be evident that estate of deceased Sambha was properly represented by his two brothers and mother who was already on record and after the mother the remaining members of the said family namely two brothers were representing the said estate and therefore the right to sue survives as against the remaining defendants and the suit can very well proceed in the absence of deceased Sambha. Therefore, the decision given by the Appellate Court in Misc. Civil Appeal No. 207 of 1986 is just and proper and the challenge to the said decision by the petitioner is without any merit. 10. In the result, the Civil Revision Application is hereby rejected. Rule discharged. 11. In view of the fact that the suit is pending since long, the Civil Judge, Senior Division, Nanded is directed to dispose of the said suit within a period of six months if the tenancy reference has been finally adjudicated and answered by the revenue authorities. 12. In the facts and circumstances of the case, there shall be no order as to costs. Application rejected