Salam Singh And Ors vs Municipal Council, Pilibanga
2021 Latest Caselaw 11348 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil First Appeal No. 385/2009

1. Salam Singh s/o Shri Mangal Singh

2. Ridmal Singh s/o Shri Mangal Singh

3. Devi Singh s/o Shri Mangal Singh

4. Narayan Singh s/o Shri Mangal Singh

5. Kishan Singh s/o Shri Mangal Singh All resident of Ward No. 16, Pilibanga, Tehsil Pilibanga, District Hanumangarh.

----Appellants Versus Municipal Council, Pilibanga through Executive Officer, Municipal Council, Pilibanga, District Hanumangarh.

                                                                       ----Respondent


      For Appellant(s)          :     Mr. H.S.Sidhu.
      For Respondent(s)         :     Mr. N.M.Lodha Sr. Adv. assisted by
                                      Mr. V.D.Dadhich.


                   HON'BLE MR. JUSTICE ARUN BHANSALI
                                Judgment
REPORTABLE

      23/07/2021

This appeal is directed against the judgment and decree

dated 6/5/2019 passed by the Addl. District Judge No.1,

Hanumangarh, whereby, the suit filed by the plaintiffs against the

Municipal Council for permanent injunction was partly decreed.

The suit was filed by the plaintiffs, all sons of Mangal Singh,

with the averments that by registered sale deed dated 10/4/1957

Shri Karni Singh Bahadur of Bikaner sold his 'Shikarkhana' ad

measuring 42560 sq. ft.; boundaries of the land were indicated in

the plaint. It was claimed that ever since the 'Shikarkhana' was

purchased by the plaintiffs on 10/4/1957, they were in possession

of the same and the possession continued; the plaintiffs have

(2 of 16) [CFA-385/2009]

constructed a petrol pump and are residing therein along with

their families. The present boundaries of 'Shikarkhana' were also

indicated. It was alleged that on 4/9/2007, employees of Municipal

Council marked the petrol pump and the residence, on inquiry it

was indicated that the land in question was part of road and the

construction would be demolished and road would be constructed.

The said contention of Municipal Council was disputed by the

plaintiffs by filing a representation inter alia claiming that they

have not trespassed over any road or Government land and,

therefore, the construction be not demolished. It was inter alia

claimed that the petrol pump and the house is situated on a duly

purchased land and the Municipal Council has no legal right to

demolish the said construction. Based on the above averments,

the following relief was claimed:

"izfroknh ds fo:) LFkkbZ O;kns"k bl vk"k; dk tkjh fd;k tkos fd og okn&i= dh pj.k la[;k 1 o 2 esa of.kZr oknhx.k ds Hkw[k.M o fuekZ.k ds mi;ksx o miHkksx esa fdlh rjg ls gLr{ksi ugha djs ,oa oknhx.k ds fuekZ.k dks {kfrxzLr ugha djs ,oa oknhx.k ds Hkw[k.M o edku esa lM+d dk fuekZ.k ugha djsaA "

The defendant filed written statement and disputed the

averments contained in the plaint. The boundaries indicated in the

plaint were denied. It was claimed that the land in question

belongs to Municipal Council and that under the directions of

Hon'ble Supreme Court and High Court, the encroachments on the

roads and other places were being removed and as the plaintiffs

have encroached on the 55 ft. road, the same was being removed.

The contents of the sale deed were also disputed with the

averments that the Power of Attorney given by Maharaja Karni

Singh for 'Shikarkhana' did not indicate any area and as such the

(3 of 16) [CFA-385/2009]

land belonging to Municipal Council could not be transferred and

that the measurements indicated in the sale deed were imaginary.

Certain additional pleas were also raised.

The trial court framed seven issues and after evidence was

led, as noticed hereinbefore, the suit was partly decreed with the

following relief and observations:

"vkns"k oknhx.k dk okn fo:) izfroknh ckcr LFkkbZ fu'ks/kkKk fuEuizdkj ls fMØh fd;k tkrk gS %& ¼1½ izfroknh oknh ds f"kdkj[kkuk DokVZj dh 285 oxZ xt Hkwfe esa mlds Hkw[k.M ij fd, x, fuekZ.k ds mi;ksx] miHkksx esa gLr{ksi ugha djsxk] fuekZ.k dks {kfrxzLr ugha djsxk vkSj bl 285 oxZ xt f"kdkj[kkuk DokVZj dh Hkwfe ij cus edku esa ls dksbZ lM+d vkfn fufeZr ugha djsxkA ysfdu ;gka ;g Hkh Li'V fd;k tkrk gS fd oknhx.k us f"kdkj[kkuk DokVZj dh Hkwfe 285 oxZ xt ls ckgj vfrØe.k dj vf/kd fuekZ.k dj j[kk gS] mlds lEcU/k esa oknhx.k }kjk okn&i= esa pkgk x;k LFkkbZ O;kns"k dk vuqrks'k izkIr djus ds vf/kdkjh ugha gSa vkSj bl lhek rd oknhx.k dk okn&i= [kkfjt fd;k tkrk gSA [kpkZ eqdnek i{kdkjku viuk&viuk ogu djsaxsA ipkZ fMØh tkjh gksA"

Feeling aggrieved, the appellants - all the plaintiffs i.e. five

brothers, filed the present first appeal. By order dated 4/11/2009,

a coordinate bench of this Court ordered status quo with regard to

the land in dispute to be maintained by the parties and the matter

was ordered to be listed for hearing in due course.

It appears that on 27/3/2019 the respondents filed an

application for early hearing of the appeal, copy whereof was

served on the counsel for the appellants.

On 2/5/2019, an application came to be filed under Order

XXII Rule 3 & 9 CPC for taking the legal representatives of

appellant nos. 1 and 2 on record and for setting aside the

abatement. It is inter alia indicated in the application that

appellant no.1 Salam Singh died on 13/10/2016 and appellant no.

(4 of 16) [CFA-385/2009]

2 Ridmal Singh died on 26/7/2011, who were survived by legal

representatives, names whereof were indicated in the application.

It is claimed that after death of appellant nos. 1 and 2 cause of

action still survives. It was further claimed that as the respondent

Municipal Council gave a notice in the name of appellants to

remove encroachment from the land in question, the applicants

approached their family counsel at Jodhpur to take legal steps

against the notice given to them. Whereafter, it was claimed that

the said counsel intimated the applicants that the present appeal

is pending before this Court, which was filed by Salam Singh &

others and on counsel intimating the applicants, they came to

know about the present appeal and after getting the information

regarding the said appeal, the applicants filed reply to the notice.

It was claimed that the applicants came to know about the

present appeal in the month of April, 2019 only and as soon as

they came to know about the said appeal, they supplied the

details of legal representatives and that the application is being

filed without any delay and that delay caused is bonafide and

inadvertent and, therefore, the abatement deserves to be set

aside. It was prayed that the application be allowed and legal

representatives of appellant no.1 - Salam Singh and appellant

no.2 - Ridmal Singh be taken on record. Both the applications i.e.

application under Order XXII Rule 3 & 9 CPC and the application

under Section 5 of the Limitation Act seeking condonation of

delay, were supported by affidavit of Dharmendra Singh Bhati s/o

Ridmal Singh Bhati.

The respondents filed reply to the application under Order

XXII Rule 3 & 9 CPC as well as application under Section 5 of the

Limitation Act. It was inter alia submitted that it is not indicated in

(5 of 16) [CFA-385/2009]

the application as to whether the same has been made on behalf

of remaining appellants or by the legal representatives of

deceased appellants. It was submitted that the contention raised

in the application regarding the applicants coming to know of

pendency of appeal in the month of April, 2019 is factually

incorrect and concocted. It was submitted that in June, 2014

notice for removal of encroachment was given by the Municipal

Council and reply to the notice was given by the owners through

their counsel, wherein, fact of pendency of the appeal was

indicated. Further, another notice was given in February, 2019 for

removal of encroachment, to which a reply was given on

27/2/2019, wherein, also it was specifically indicated that the

matter was pending before the High Court. Along with the reply,

copies of notice and replies filed in this regard have been placed

on record. It was further submitted that the application has been

filed with false and incorrect statement and on account of such

conduct of the applicants, the applications deserve to be

dismissed.

Learned counsel for the appellants submitted that the delay

in filing the application under Order XXII Rule 3 & 9 CPC is

bonafide inasmuch as the legal representatives of the deceased

appellants were unaware of pendency of appeal and as soon as

they became aware of pendency of appeal in the month of April,

2019, they have taken steps for bringing on record the legal

representatives of deceased appellants and as such the

applications deserve acceptance.

Submissions have been made that appellants Devi Singh,

Narayan Singh and Kishan Singh are still on record and, therefore,

(6 of 16) [CFA-385/2009]

in any case the appeal would not abate as a whole and, therefore,

also the applicants be taken on record.

Learned counsel for the respondent vehemently opposed the

submissions. It was submitted that a bare look at the documents

annexed with the reply would indicate that the notice given by the

respondent dated 16/5/2014 was received by Dharmendra on

19/5/2014, the same person has sworn the affidavit in support of

both the applications. The response to the notice given, refers to

the pendency of appeal before this Court and another reply

pursuant to another notice was given on 27/2/2019, wherein, also

a specific reference was made to the pendency of appeal before

the High Court and interim order having been granted by this

Court, the second reply was signed by Narayan Singh, appellant

no.4, as such the plea raised in the application that legal

representatives were unaware of pendency of the appeal and

became aware only in the month of April, 2019 are ex facie false,

incorrect and baseless.

Submissions were made that the appeal was filed by five

appellants and two of them have died, while the application

indicates that the legal representatives were unaware of pendency

of appeal, one of whom has filed reply dated 27/2/2019 cannot

deny the knowledge about pendency of appeal and as the

application has been filed after 08 years of death of appellant no.2

and about 2½ years after the death of appellant no.1, the

application being ex facie barred by limitation, the plea raised

seeking condonation of delay being false, incorrect and baseless,

the applications deserve to be dismissed.

Further submissions have been made that looking to the

nature of the suit and the decree passed by the trial court, with

(7 of 16) [CFA-385/2009]

the dismissal of the above application, the appeal also would

abate as a whole and same cannot be continued by the remaining

appellants. It is submitted that the suit was filed by co-owners and

each co-owner has right over the entire land and once the appeal

abates qua two appellants and if the same is not dismissed as a

whole, the same may result in two conflicting decrees for the

same subject matter and as such the appeal deserves to be

dismissed as a whole.

Reliance was placed on the judgments in Budh Ram & Ors.

vs. Bansi & Ors. : (2010) 11 SCC 476, Teju & Ors. vs. Board of

Revenue & Ors. : AIR 1978 Rajasthan 16, Lala Srimandar Das Jain

& Ors. vs. 1st Addl. Civil Judge, Dehradun & Ors. : AIR 2012

Uttarakhand 21 and Arigela Laxmi vs. Boodireddy Chandraiah :

2003 (1) ALT 565.

Learned counsel for the appellants made vehement

submissions that the plea raised regarding the appeal liable to be

dismissed as a whole if the application under Order XXII Rule 3 &

9 CPC qua the appellant nos. 1 and 2 is not accepted, is totally

baseless. It was submitted that the plaintiffs-appellants are co-

owners of the suit property and under Section 45 of the Transfer

of Property Act, 1882 ('the Act, 1882') they are equally interested

in the property and, therefore, even if the appeal abates qua the

appellant nos. 1 and 2, the same would survive and cannot be

dismissed as a whole.

Submissions were made that the plaintiffs have individual

rights in the land in question and on that count even if the

application under Order XXII Rule 3 & 9 CPC is not accepted, the

same cannot abate as a whole.

(8 of 16) [CFA-385/2009]

Reliance was placed on the judgments in Sardar Amarjit

Singh Kalra vs. Pramod Gupta : (2003) 3 SCC 272, N.Khosla vs.

Rajlakshmi & Ors. : (2006) 3 SCC 605.

It was prayed that the applications be allowed or the prayer

made by the respondents regarding abatement of appeal as a

whole be rejected.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record.

The facts are not in dispute, wherein, the suit for permanent

injunction was filed by five plaintiffs inter alia claiming themselves

as co-owners based on the sale deed dated 10/4/1957 seeking

injunction against the respondent in demolishing the construction

and from constructing road over the land in question.

As quoted hereinbefore, the trial court partly accepted the

suit i.e. to the extent of 285 sq. yds. of land and made a specific

clarification that the plaintiffs were not entitled to any relief

beyond the land ad measuring 285 sq. yds. on which they have

encroached and raised construction. The trial court under issue

no.1 came to a categorical conclusion regarding the plaintiffs

being in legal possession of land ad measuring 285 sq. yds only

and on rest of the land they were in possession as trespassers.

Against the said judgment & decree, the present appeal was

filed, wherein, interim order was granted by the court on

4/11/2009. The appellant no.2 died in the year 2011 and

appellant no.1 died in the year 2016, however, no steps were

taken. Whereafter, the present application under Order XXII Rule

3 & 9 CPC along with an application under Section 5 of the

Limitation Act came to be filed on 2/5/2019 with the submissions

that the legal representatives were unaware of the pendency of

(9 of 16) [CFA-385/2009]

the appeal and as such they may be impleaded as legal

representatives and delay in filing the application may be

condoned.

The contentions raised in the application regarding the

applicants being unaware of pendency of the appeal appears to be

wholly incorrect and baseless. The respondents in their reply have

annexed a notice issued on 16/5/2014, which was received by one

of the legal representatives of appellant no.2, who has sworn the

affidavit in support of the applications. Reply to the said notice

was given by the counsel relying on the proceedings pending

before the High Court which clearly reflects knowledge of the

deponent of the affidavits regarding the pendency of proceedings

before this Court.

Again on another notice issued, a reply was filed by the

appellant no. 4 on 27/2/2009, wherein also reference was made to

the pendency of the appeal before this Court. Despite specific

assertions made by the respondents in reply to the application

under Order XXII Rule 3 & 9 CPC and under Section 5 of the

Limitation Act regarding the applicants being aware of the

pendency of appeal, filing documents in support and the assertion

about their coming to know of pending appeal in April, 2019 being

false, no rejoinder to the said reply has been filed so as to

contradict the submissions made in this regard.

Besides the above, it is not even the case in the application

under Order XXII Rule 3 & 9 CPC that other three appellants were

not aware of the pendency of the present appeal, it is another

aspect that the reply dated 27/2/2019 has been signed by

appellant no. 4 and as such even if such a plea was taken that

would be equally incorrect.

(10 of 16) [CFA-385/2009]

As noticed hereinbefore, the respondents have filed an

application on 27/3/2019, copy whereof was served on the

counsel for the appellants seeking early hearing of the appeal,

however, no reference of the receipt of said application has been

made and the application thereafter also has been filed on

2/5/2019.

In view of the above glaring fact situation, wherein the

applicants/appellants were well aware of the pendency of present

appeal and two of the appellants have died in the year 2011 and

2016, for over 8 years / 2 ½ years steps were not taken to bring

on record the legal representatives and as the plea raised for not

bringing on record the legal representatives in time having been

found incorrect, the application seeking condonation of delay for

setting aside the abatement as well as for bringing on record the

legal representatives, which otherwise also suffers from

unexplained laches cannot be accepted and the same are,

therefore, dismissed.

The dismissal of the applications leads to second aspect of

the matter as to whether the appeal would abate qua the

appellant nos. 1 and 2 or same would abate as a whole.

As noticed hereinbefore, the suit was filed by five plaintiffs as

co-owners of the land jointly purchased by them on 10/4/1957.

The trial court accepted the case qua a part of the land i.e. 285

sq. yds. and rejected the same for rest of the land and held the

plaintiffs as trespassers. The consequence of appeal having abated

qua appellant nos. 1 and 2 on account of dismissal of application

hereinbefore is that the decree passed by the trial court stands

affirmed qua the two plaintiffs i.e. Salam Singh and Ridmal Singh

(11 of 16) [CFA-385/2009]

i.e. they are trespassers on the land other than land ad measuring

285 sq. yds.

Once the cause is based on common sale deed and the

appellants are co-owners and findings recorded in the suit qua two

appellants has become final, the appeal, if permitted to be

continued by the remaining three appellants, which appeal if

allowed in future, the same would essentially lead to two

conflicting decrees i.e. qua appellant nos. 1 and 2 being

trespassers and qua appellant nos. 3, 4 and 5, being owners of

the same property.

Reliance placed by counsel for the appellants on the

provisions of Section 45 of the Act is apparently misplaced.

Section 45 of the Act reads as under:

"45. Joint transfer for consideration.--Where immoveable property is transferred for consideration to two or more persons and such consideration is paid out of a fund belonging to them in common, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property identical, as nearly as may be, with the interests to which they were respectively entitled in the fund; and, where such consideration is paid out of separate funds belonging to them respectively, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property in proportion to the shares of the consideration which they respectively advanced.

In the absence of evidence as to the interests in the fund to which they were respectively entitled, or as to the shares which they respectively advanced, such persons shall be presumed to be equally interested in the property."

(emphasis added)

A perusal of the above provision would reveal that wherever

there is joint transfer for consideration, in absence of evidence as

to the interest in the fund of transferees or as to shares which the

transferees respectively advanced, transferees shall be presumed

(12 of 16) [CFA-385/2009]

to be equally interested in the property. Once a presumption has

been created under law regarding the transferees being equally

interested in the property, it cannot be said that they would be

interested in any specific portion of the property.

The status of right of co-owner qua the land and

consequence of the suit abating qua one of the co-owners has

been dealt with by Hon'ble Supreme Court in the case of Budh

Ram (supra), wherein, the suit was for declaration to the effect

that plaintiffs/respondents were co-owners with consequential

relief of permanent and prohibitory injunction restraining the

defendants from causing ouster, wherein, the trial court decreed

the suit in favour of the plaintiffs. During the pendency of the

appeal one of the respondents died and after considering the

judgment in the case of Sardar Amarjit Singh Kalra (supra),

Hon'ble Supreme Court inter alia observed as under:

"19. Therefore, the law on the issue stands crystallized to the effect that as to whether non-substitution of LRs of the defendants/respondents would abate the appeal in toto or only qua the deceased defendants/respondents, depend upon the facts and circumstances of an individual case. Where each one of the parties has an independent and distinct right of his own, not inter-dependent upon one or the other, nor the parties have conflicting interests inter se, the appeal may abate only qua the deceased respondent. However, in case, there is a possibility that the Court may pass a decree contradictory to the decree in favour of the deceased party, the appeal would abate in toto for the simple reason that the appeal is a continuity of suit and the law does not permit two contradictory decrees on the same subject matter in the same suit. Thus, whether the judgment/decree passed in the proceedings vis-a-vis remaining parties would suffer the vice of being a contradictory or inconsistent decree is the relevant test.

20. The instant case requires to be examined in view of the aforesaid settled legal propositions. Every co-owner has a right to possession and enjoyment of each and every part of the property equal to that of other co-owners. Therefore, in theory, every co-owner has an interest in every infinitesimal portion of the subject matter, each has a right irrespective of the quantity of its interest, to be in possession of every part and parcel of the property jointly

(13 of 16) [CFA-385/2009]

with others. A co-owner of a property owns every part of the composite property along with others and he cannot be held to be a fractional owner of the property unless partition takes place........"

(emphasis added)

The Hon'ble Court ultimately upheld the conclusion arrived at

by the High Court that there was possibility for the appellate court

to reverse the judgment of the trial court and in such an

eventuality there could have been two contradictory decrees and

as such dismissal of the appeal having abated as a whole was

upheld.

From the above, co-owners are presumed to be interested in

the entire property as a whole and as such, the provisions of

Section 45 of the Act does not advance the cause of the

appellants.

So far as the judgment of Hon'ble Supreme Court in the case

of Sardar Amarjit Singh Kalra (supra) is concerned, the Hon'ble

Court in para 34 of the judgment summarized its finding on the

aspect of abatement of suit as a whole or qua the deceased, which

reads as under:-

"34. In the light of the above discussion, we hold:- (1) Wherever the plaintiffs or appellants or petitioners are found to have distinct, separate and independent rights of their own and for purpose of convenience or otherwise, joined together in a single litigation to vindicate their rights, the decree passed by the Court thereon is to be viewed in substance as the combination of several decrees in favour of one or the other parties and not as a joint and inseverable decree. The same would be the position in the case of defendants or respondents having similar rights contesting the claims against them.

(2) Whenever different and distinct claims of more than one are sought to be vindicated in one single proceedings, as the one now before us, under the Land Acquisition Act or in similar nature of proceedings and/or claims in assertion of individual rights of parties are clubbed, consolidated and dealt with together by the Courts concerned and a single judgment or decree has been passed, it should be treated as a mere combination of

(14 of 16) [CFA-385/2009]

several decrees in favour of or against one or more of the parties and not as joint and inseparable decrees. (3) The mere fact that the claims or rights asserted or sought to be vindicated by more than one are similar or identical in nature or by joining together of more than one of such claimants of a particular nature, by itself would not be sufficient in law to treat them as joint claims, so as to render the judgment or decree passed thereon a joint and inseverable one.

(4) The question as to whether in a given case the decree is joint and inseverable or joint and severable or separable has to be decided, for the purposes of abatement or dismissal of the entire appeal as not being properly and duly constituted or rendered incompetent for being further proceeded with, requires to be determined only with reference to the fact as to whether the judgment/decree passed in the proceedings vis-a-vis the remaining parties would suffer the vice of contradictory or inconsistent decrees. For that reason, a decree can be said to be contradictory or inconsistent with another decree only when the two decrees are incapable of enforcement or would be mutually self-destructive and that the enforcement of one would negate or render impossible the enforcement of the other."

The Hon'ble Court laid down that wherever the plaintiffs or

appellants or petitioners are found to have distinct, separate and

independent rights of their own, the decree passed is to be viewed

as the combination of several decrees in favour of one or the other

parties and not as a joint and inseverable decree.

In the above case in para 26, the Hon'ble Court found that

even if khata was joint the same was of no relevance as long as

each one of them had their own independent, distinct and

separate shares in the property as found separately indicated in

the jamabandi of shares of each of them distinctly and that as

each one of the appellants therein had an independent and distinct

share of their own, not interdependent upon one or the other of

the appellants, the dismissal of the appeals by the High Court in

their entirety was not justified.

However, in the present case, as noticed hereinbefore, the

appellants-plaintiffs are admittedly co-owners and there is no

(15 of 16) [CFA-385/2009]

assertion about their shares being distinct and from Section 45 of

the Act it cannot be said that they had any distinct share or had

any right on a specific portion of the property, therefore, the

judgment in Amarjit Singh Kalra (supra) has no application to the

facts of the present case.

Similarly, in the case of N. Khosla (supra) also the Court

came to the conclusion that each of the daughters had a distinct

and separate share by metes and bound and based on which it

was found that the decree was separate and severable which

aspect is absent in the present case.

Reference may also be beneficially made to the judgment of

Hon'ble Supreme Court in Municipal Council, Mandsaur vs.

Fakirchand & Ors. : (1997) 3 SCC 500, wherein, in a similar

nature proceedings wherein legal representatives of one of the co-

owners were not on record when the appeal was pending, the

Hon'ble Supreme Court inter alia observed as under:

"6. We are, however, unable to accept such contention of Mr. Gambhir for the reason that from the statement made in the plaint it cannot be definitely held that the property was coparceners property which could be represented by a Karta. It has been alleged in the plaint that after the death of the father, all the three brothers became owners of the said joint Hindu family property. It may be indicated here that if it was a coparcenery property then the son would have been coparceners even before the death of the father and there was no necessity to wait till the death of the father to get ownership of the property. The averments in the plaint really means that the disputed property was the undivided property of the said three joint owners who had inherited the father's interest after his death. That apart, even it is assumed that it was coparcenery property there is nothing on record to indicate that any one member of the eldest male member of the family was acting as a Karta of the joint family. On the contrary, it appears that all the co-owners filed the said suit for injunction, which on the face of it, only indicates that all of them intend to exercise their right as co-owners of the property and they have not authorised any one of them to represent the property as a karta of the joint Hindu family property. In the aforesaid circumstances, the decision of the High Court cannot be said to be erroneous for which any interference

(16 of 16) [CFA-385/2009]

by this Court is called for. The appeal, therefore, fails and is dismissed without any order as to costs."

(emphasis added)

From the above observations regarding status of the co-

owners and the fact that in the present case appellants are indeed

co-owners of the property based on the sale deed dated

10/4/1957 and continuation of appeal by the remaining three

appellants, if allowed, would result in passing of a contradictory

decree, therefore, the appeal would abate as a whole.

In view of the above discussion, the applications filed under

Order XXII Rule 3 & 9 CPC and Section 5 of the Limitation Act are

dismissed. As a consequence and in view of above discussion, the

appeal is also dismissed as having abated as a whole.

No order as to costs.

(ARUN BHANSALI),J

baweja/-

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