A. V. SRINIVASA REDDY, J.

( 1 ) THIS regular second appeal arises from the divergent findings of the courts below.

( 2 ) FOR the sake of convenience the parties are referred to in the course of this judgment by their rank and status in the Trial Court.

( 3 ) THE plaintiffs, respondents 1 to 5 filed O. S. No. 600 of 1990 against the defendants, appellants herein, seeking a decree of permanent injunction in respect of 8 acres of land in Sy. No. 12/1-AA of Karadikoppa village, Hubli Taluk. The defendants resisted the suit and filed a counter-claim for partition of the said property and allotment of 1/3rd share to them on the ground that they had purchased 3 acres from chennappa, the father of plaintiffs 3 to 5. After trial, the learned Trial judge by his judgment and decree dated 16th December, 1993 decreed the suit as prayed for. Being aggrieved, the defendants took the matter in R. A. No. 8 of 1994 before the Court below. The Court below on reappreciation of the evidence set aside the judgment and decree passed in o. S. No. 600 of 1990 and dismissed the suit of the plaintiffs and allowed the counter-claim of the defendants. Being aggrieved, the plaintiffs in o. S. No. 600 of 1990 have come up in this regular second appeal.

( 4 ) I have heard the learned Counsels on both sides.

( 5 ) LEARNED Counsel for the appellants Mr. Umesh R. Malimath submitted that the plaintiffs are cultivating the land jointly and it is in their joint possession and that their name figures in the record of rights pertaining to the land in question. The property has been purchased from the nucleus of ancestral property. Chennappa was addicted to bad vices and the sale effected by him was not for legal necessity and, therefore, not binding on them. The Court below erred in proceeding with the appeal despite the death of second plaintiff (respondent 2 before the court below) during the pendency of the appeal in the Court below. The regular appeal having abated the judgment and decree passed by the court below is liable to be set aside.

( 6 ) LEARNED Counsel for the respondent-Mr. V. F. Kumbar on the other hand submitted that the suit land is not a joint family property. It is a property purchased jointly by plaintiffs 1 and 2 and Chennappa, the father of plaintiffs 3 to 5. The property was purchased by late Chennappa out of his self-earned funds and the property having been sold by him during his lifetime itself, the question whether it was sold for legal necessity or not is immaterial. The defendants are purchasers of 3 acres of the suit property for valuable consideration and they are entitled to a decree for partition.

( 7 ) IN the light of the rivals submissions made before me, the following substantial questions arise for my consideration: (1) Whether the judgment and decree of the Court below in R. A. No. 55 of 2000 is vitiated on account of abatement of the appeal as a result of death of the second plaintiff who was the second respondent in the said appeal? (2) Whether the existence or otherwise of the legal necessity for late Chennappa to sell 3 acres of the suit property is a relevant issue for deciding the suit? (3) Whether the counter-claim of the defendants could have been entertained by the Courts below without the plea for possession of the share claimed by them?

( 8 ) POINT No. (1 ). Order 22, Rule 4 of the CPC lays down the procedure to be followed in case of death of one of several defendants or of sole defendant. The said rule reads:"4. Procedure in case of death of one of several defendants or of sole defendant. (1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. " (emphasis supplied) the counter-claim by the defe

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