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2002 DIGILAW 63 (PNJ)

Kulwant Singh v. Kartar Kaur

2002-01-10

ASHUTOSH MOHUNTA

body2002
JUDGMENT Ashutosh Mohunta, J. - This regular second appeal has been filed by Kulwant Singh and Gursewak Singh sons of Kirpal Singh, defendant-appellants against the judgment of the learned District Judge, Ferozepur dated 21.1.1981. 2. Briefly, the facts are that the plaintiff-respondent Kartar Kaur filed a suit for declaration that she is the owner of land measuring 8 Kanals 5 Marlas, which is half share of land measuring 16 Kanals 9 Marlas comprised in Khasra Nos. 150 (1-7), 53 M/9/1(7-2), 2(8-0) situated in the area of village Rataul, Tehsil Zira. It was also prayed that the sale deed dated 12.1.1979 on behalf, of the plaintiff executed by defendant No. 3 as Mukhtiar-e-am of the plaintiff in favour of defendants No. 1 and 2 is null and void, and without consideration, with a consequential relief of possession. The trial Court dismissed the suit of the plaintiff. However, the appeal filed by the plaintiff was partly accepted and the judgment of the trial Court holding the sale deed Exhibit D4 as valid, was set aside. The plaintiffs suit for declaration that sale deed Exhibit D4, dated 12.1.1979, executed by defendant No. 3 on behalf of the plaintiff as a Mukhtiar-e-am in favour of defendants No. 1 and 2 was held to be null and void. 3. Against the judgment of the District Judge, Ferozepur, the defendant- appellants Kulwant Singh and Gureswak Singh filed the present regular second appeal. During the pendency of the appeal, Kulwant Singh died on 5.9.1990 and a copy of the death certificate, attested by the Notary Public, has been annexed as Annexure R3/1. However, no legal representative of the appellant Kulwant Singh has been brought on record. It has been contended by Mr. Ratta, learned counsel for the respondent-plaintiff that as no legal representative of Kulwant Singh appellant has been brought on record, therefore, the appeal stands abated. 4. It has further been contended by the learned counsel for the respondent- plaintiff that the right claimed by the appellants was indivisible one and the same was not capable of being separated. He has relied upon the decision of the Supreme Court in Matindu Prakash (Deceased) by Lrs. 4. It has further been contended by the learned counsel for the respondent- plaintiff that the right claimed by the appellants was indivisible one and the same was not capable of being separated. He has relied upon the decision of the Supreme Court in Matindu Prakash (Deceased) by Lrs. v. Bachan Singh and others, AIR 1977 SC 2029 wherein their Lordships have held : "that the question whether the appeal abated as a whole so as to entail a dismissal of the entire suit was a matter which could be gone into after a persual of the nature of the pleadings, the relief granted by the Court and other materials on the record." Mr. Ratta further contended that as the shares of the two appellants Kulwant Singh and Gursewak Singh, were indivisible, therefore, the appeal must abate in toto. 5. Mr. Khunger appearing on behalf of the appellants has argued that the appeal should be held to be abated only qua Kulwant Singh. He has, however, agreed that in case the share of both the appellants has not been defined in the sale deed dated 12.1.1979, then the appeal would abate as a whole. For this purpose, the original sale deed Exhibit D4 was perused by me. On a careful reading of the sale deed, it transpires that no definite share of any of the two appellants has been defined. It has not been mentioned as to how much share, each of the two appellants has in the land in dispute. Thus, after a persual of nature of pleadings and on coming to a positive finding that the share of the two appellants is an indivisible one, the whole appeal stands abated. Consequently, it is held that as the relief claimed by the appellants is indivisible, therefore, the entire appeal abates. Resultantly, the regular second appeal is dismissed. There shall be no order as to costs. Appeal dismissed.