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2025 DIGILAW 760 (TS)

Vazeer bee v. Sudarshan Raj Kapoor

2025-06-09

LAXMI NARAYANA ALISHETTY

body2025
ORDER : LAXMI NARAYANA ALISHETTY, J. Questioning the legality and validity of the order dated 13.03.2023 passed by VIII Additional District Judge, Ranga Reddy District at L.B. Nagar in IA.No.1 of 2023 in OS.No.602 of 2014, the present Revision Petition is filed. 2. Heard Sri G.Rajesham, learned counsel for revision petitioners, and Sri Bankatlal Mandhani, learned counsel for the respondents. 3. The petitioners are defendants and the respondents are plaintiffs in the suit. For convenience, hereinafter the parties will be referred to as arrayed they are in the suit. 4. In nut-shell, the facts of the case shorn off unnecessary details are that plaintiffs filed the aforesaid suit for perpetual injunction against the defendants in respect of the suit schedule property, i.e., land admeasuring Acs.21.24 guntas in Sy.No.21 and land admeasuring Acs.21.04 guntas in Sy.No.22, total admeasuring Acs.42.28 guntas situated at Porandla Village, Maheshwaram Mandal, Ranga Reddy District. It was averred in the plaint that plaintiff No.1 purchased land admeasuring Acs.21.24 guntas vide sale deed bearing document No.1312/1984 dated 06.11.1984 and plaintiff No.2 purchased land admeasuring Acs.21.04 guntas vide sale deed bearing document No.1313/1984 dated 06.11.1984. Both the plaintiffs filed the suit alleging interference by the defendants with the suit schedule property. During the pendency of the suit, plaintiff No.1 died on 18.02.2019 leaving behind Anju Kapoor, Shilpa Baijal, Swathi Makhija and Shikha Kapoor as his legal heirs. While so, plaintiff No.1 filed an application in IA.No.539 of 2020 praying to bring himself as legal representative of the deceased plaintiff No.1 in the suit, basing on Will dated 16.02.2019, as per which, the land belonging to plaintiff No.1 was bequeathed to plaintiff No.2 and that the amounts lying in the Savings Bank Account and Fixed Deposits were given to his wife- Anju Kapoor and daughter –Shilpa Baijal. However, it appears that the said application was withdrawn by plaintiff No.2. 4.1. Subsequently, the defendants filed the application in IA.No.1 of 2023 under Order XXII Rule 9 CPC praying the Court to dismiss the suit as abated since no cause of action survives in the suit. However, it appears that the said application was withdrawn by plaintiff No.2. 4.1. Subsequently, the defendants filed the application in IA.No.1 of 2023 under Order XXII Rule 9 CPC praying the Court to dismiss the suit as abated since no cause of action survives in the suit. In the affidavit filed in support of the application, it was averred that plaintiff Nos.1 and 2 filed suit for perpetual injunction restraining the defendants from interfering with the suit schedule property and that though the plaintiffs purchased the suit schedule property under two different sale deeds, since the cause of action for both the plaintiffs arose on the same day, the entire suit is abated in view of non-bringing of LRs of deceased-plaintiff No.1 on record and further, as no decree can be passed partially in favour of plaintiff No.2 and thus, prayed to dismiss the suit as abated since the same is not maintainable. 5. Plaintiff No.2 filed counter resisting the application and contended that though cause of action and the relief claimed in the suit are joint, he has been advised that the suit will not be abated for non-substitution of LRs of deceased-plaintiff No.1. He further contended that the application for substitution basing on the Will should be allowed leaving the question of validity and genuinity of the Will open, by relying upon the judgment of the Hon'ble Apex Court in Atma S.Barar Vs.Mukhtiar Singh , [ 2003(9) SCC 624 ] 6. The trial Court, considering the pleadings of both the parties and the arguments advanced on their behalf, dismissed the application vide the impugned order dated 13.03.2023, with an observation that since cause of action arose for both the plaintiffs on the same day, non-bringing of the LRs of deceased-plaintiff No.1 on record would not abate the suit. Aggrieved by the said order, the present Revision Petition is filed. 7. Learned counsel for the petitioners submitted that the trial Court failed to appreciate the fact that the plaintiffs have filed suit with single schedule though the suit schedule property falls under two different survey numbers and that initially, the application in IA.No.539 of 2020 filed by plaintiff No.2 to bring him as LR of deceased-plaintiff No.1 was dismissed as withdrawn. Learned counsel for the petitioners submitted that the trial Court failed to appreciate the fact that the plaintiffs have filed suit with single schedule though the suit schedule property falls under two different survey numbers and that initially, the application in IA.No.539 of 2020 filed by plaintiff No.2 to bring him as LR of deceased-plaintiff No.1 was dismissed as withdrawn. He further submitted that the cause of action and relief sought in the suit are indivisible and therefore, the entire suit is abated for not taking steps to bring the LRs of deceased-plaintiff No.1 on record and prayed to allow the Revision Petition. 8. Per contra, learned counsel for the respondents submitted that when there are several plaintiffs in a suit, death of one of the plaintiffs will not abate the suit and the suit can be pursued by the surviving plaintiff(s). In support of his contention, learned counsel relied upon the judgment of the erstwhile High Court of Andhra Pradesh in Meka Chinnappa Reddy and another Vs. Meka Pulla Reddy , [ 2000(4) ALD 492 ] , wherein it is held that death of one of the plaintiffs will not abate the suit and the surviving plaintiff(s) can pursue the suit. By contending thus, learned counsel submitted that the trial Court has rightly dismissed the application and the petitioners have failed to point out any irregularity or illegality in the impugned order and hence, the Revision Petition is liable to be dismissed. 9. In Meka Chinnappa Reddy ’s case (cited supra), relied upon by the learned counsel for the respondents, plaintiff Nos.1 and 2 filed a suit for injunction claiming to be joint owners of the suit schedule property and that during the pendency of the suit, one of the plaintiffs died and an application filed by the defendants to dismiss the suit as abated was dismissed by the trial Court and on Revision, the same was upheld by the High Court by referring to Order XXII Rules 1 and 2 CPC. 10. 10. As per Order XXII Rule 2 CPC, where there are more plaintiffs or defendants than one, and any one of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants. 11. However, in the present case, the suit is filed by plaintiff Nos.1 and 2 jointly and a common schedule with common boundaries is mentioned in the plaint contending that the lands mentioned in the suit schedule were purchased by plaintiff Nos.1 and 2 individually under two different sale deeds. 12. Thus, the facts of the present are completely distinct to the facts of the case in Meka Chinnappa Reddy’s case (cited supra) and hence, the principle laid down in the said case is not applicable to the case on hand. 13. Further, it is settled principle of law that when a relief is being sought in respect of a property, the said property should be fully identifiable with boundaries, otherwise, the decree, if any, passed in the suit becomes inexecutable. 14. In the instant case, plaintiff Nos.1 and 2 claimed to be owners of land in two different survey numbers, having purchased the same under two different sale deeds, however, a common schedule of property with common boundaries was given in the suit. In other words, the lands claimed to be owned by plaintiff Nos.1 and 2 are situated in two different survey numbers, however, instead of giving distinct boundaries, common boundaries are mentioned in the schedule for the lands in both the survey numbers, i.e., Sy.Nos.21 and 22. 15. In the above factual background of the case and in view of non-bringing of LRs of deceased-plaintiff No.1 on record, the suit schedule property being combined and indivisible, the right of plaintiff No.2 to sue does not survive insofar as the property claimed by him is concerned. 15. In the above factual background of the case and in view of non-bringing of LRs of deceased-plaintiff No.1 on record, the suit schedule property being combined and indivisible, the right of plaintiff No.2 to sue does not survive insofar as the property claimed by him is concerned. Furthermore, it is relevant to note that no steps are taken by the LRs of deceased-plaintiff No.1 to come on record and also in the light of dismissal of the application in IA.No.539 of 2020 filed by plaintiff No.2 seeking to bring him on record as legal representative of deceased-plaintiff No.1, as not pressed, the right of plaintiff No.2 to sue does not survive. 16. Having regard to the above facts and circumstances of the case and also in the light of the foregoing reasons and the legal position, this Court is of the considered view that the impugned order warrants interference by this Court and the Revision Petition deserves to be allowed. 17. In the result, this Revision Petition is allowed, setting aside the impugned order and consequently, IA.No.1 of 2023 in OS.No.602 of 2014 on the file of the VIII Additional District Judge, Ranga Reddy District at L.B. Nagar stands allowed. No costs. 18. Miscellaneous petitions pending, if any, shall stand closed. No costs.