IMPORTANT POINT
Suit for declaration of title and for recovery of possession cannot be decreed where Plaintiff has not made out any case for declaration of his/her title over disputed property.

JUDGMENT :

L. NAGESWARA RAO, J.

1. The Appellant is the 1st Plaintiff in the suit and the Respondent No.1 is Defendant No.1. They are referred to as arrayed in the suit for convenience.

2. The 1st Plaintiff along with her husband Narsoji filed a suit for declaration of title and for recovery of possession. The suit was decreed by a judgment dated 25.04.1986 passed by the Additional Chief Judge, City Civil Court, Hyderabad, declaring the title of the Plaintiffs to the suit house and directing Defendant Nos.1 and 2 to deliver the vacant possession of the suit house. A learned Single Judge of the High Court of Andhra Pradesh reversed the judgment of the Trial Court and dismissed the suit. The Division Bench of the High Court dismissed the LPA filed by the Plaintiffs on 05.08.2008 giving rise to this Appeal.

3. It is relevant to mention that Plaintiff No.2 Narsoji died on 25.07.2008 during the pendency of the LPA before the High Court. Leave was granted to file Appeal by this Court on 14.02.2009. During the pendency of the Appeal in this Court, Defendant No.2 died in the year 2013. On 04.07.2014, Plaintiff No.1 filed an application for bringing the legal representatives of deceased Defendant No.2 on record. It is to be noted that Defendant No.1 is the wife of Defendant No.2. The Registry of this Court pointed out certain defects in the application for bringing the remaining legal representatives of the deceased Defendant No.2 on record. Due to the default of not curing the defects pointed out by the Registry, Defendant No.2 was deleted from the array of parties by an order dated 28.10.2015. When the matter was listed for hearing on 23.10.2019, learned counsel for Defendant No.1 sought dismissal of the appeal as not being maintainable in view of the deletion of Defendant No. 2 from the array of parties. Thereafter, an application was filed by the Plaintiff for setting aside the abatement and for restoration by condoning the delay in filing the application, in which notice was issued.

4. During the course of hearing of the appeal, Ms. Prerna Singh learned counsel for Defendant No.1 took a preliminary objection to the maintainability of the appeal in view of the abatement of the appeal insofar as Defendant No.2 is concerned. She relied upon the judgment of this Court in Goli Vijayalakshmi & Ors. v Yendru Sathiraju & Ors., (2019) 11 SCC 352 to argue that there cannot be contradictory decrees in the event of Plaintiff succeeding in the appeal.

5. Mr. A.T.M. Rangaramanujam, learned Senior Counsel appearing for the Plaintiff countered the said submission and argued that in terms of Order XLI Rule 4 of the Code of Civil Procedure, 1908 the Appeal is still maintainable in spite of death of one of the Defendants. He relied upon the judgment of this Court in Mahabir Prasad v. Jage Ram & Ors., (1971) 1 SCC 265 in which it was held as follows: -

“Where in a proceeding a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on the record, as an heir and legal representative. Even if there are other heirs and legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act, the proceeding will not abate.”

6. As stated earlier, Defendant No.1 is the wife of Defendant No.2, who died during the pendency of this appeal. As the legal representative of the 2nd Defendant is on record, we propose to hear this Appeal on merits.

7. The Plaintiffs’ case before the Civil Court is that the suit property which is the house in survey No. 134, Malakpet, Hyderabad was purchased from Defendant No.4. It was averred in the plaint that Defendants No.1 and 2 trespassed on the property in September, 1975. Defendants No. 1 & 2 denied the averments made in the plaint. According to Defendants No.1 & 2, Mrs. Akbarunnissa Begum was the owner of Survey No.108. S