SA/138/2023
2023 Latest Caselaw 3313 UK

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                                  SA No.138 of 2023
                                  Hon'ble Vivek Bharti Sharma, J.

Mr. Akshya Pradhan, Advocate for the appellant.

2. Learned counsel for the appellant would submit that the present second appeal has been filed against the concurrent findings of the courts below in the suit filed by the appellant/plaintiff no.1 for a decree of permanent injunction to restrain the respondents from selling, gifting, alienating or creating any third party interest in the suit property on the ground that the appellant/plaintiff no.1 and plaintiff no.2 (since deceased) are the beneficiaries in view of the fact that the suit property in question was bequeathed by the original owner Raghuveer Singh.

3. He would further submit that the plaintiff no.2 had expired during the pendency of the suit before the trial court and his legal heirs were substituted in the suit, however, in the first appeal filed by the appellant/plaintiff no.1 the legal heirs of the plaintiff no.2 were not impleaded as respondents as they had not joined the appellant/plaintiff no.1 to file the first appeal.

4. However, perusal of the impugned judgment of the trial court reveals that no legal heir of plaintiff no.2 was substituted, rather, only the name of the plaintiff no.2 was suffixed with words (dead). Similarly, perusal of Annexure-5, which is the certified copy of the plaint also shows that no substitution did take place, instead it is written in handwriting ßJheku th] ekuuh; U;k;ky; ds vkns"k fn- 13@9@2021 ds vuqikyu esa la"kks/ku fd;k x;kAÞ and the word ße`rdÞ was prefixed and suffixed with the name of plaintiff no.2.

5. Learned counsel for the appellant/plaintiff no.1 would submit at Bar that the Will executed by Raghuveer Singh, since deceased, was in favour of the appellant/plaintiff no.1 and the original plaintiff no.2. He seeks time to place law on the point that on account of death of plaintiff no.2 cause of action survived with the only surviving appellant/plaintiff no.1.

6. List on 08.11.2023.

(Vivek Bharti Sharma, J.) 01.11.2023 Rajni