( 1 ) BY this Order, I propose to dispose of the application under Order XXII Rule 3 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code, for short) filed by the appellant for bringing on record the legal representatives of the respondent.

( 2 ) THE legal representatives of the respondent have opposed the said application on the ground that the right to sue does not survive after death of the respondent. An injunction, it was stated, does not run with the land but acts only in personam or against a person. Reliance in this regard was placed on shankara Lingappa versus Nanje Gowda reported in AIR 1981 Kar 78 and Tej Kumar jain versus Purshottam reported in AIR 1981 MP 55. It was further submitted that the original suit as filed was not based upon a contract between the appellant and the respondent but based upon "torts" and on the death of the respondent the said suit, thereafter made subject matter of an appeal abated. Reliance in this regard was placed upon the commentaries of Winfield and zolowicz on "torts", Ratanlal and Dhirajlal on "law of Torts" and judgments in m. Veerappa versus Evelyn Sequeira and others reported in AIR 1988 SC 506, E. I. Ltd and another versus Klaus Mittelbachert (deceased) through LRs reported in 2002 (62) DRJ 476 (DB), Union of India versus Sat Pal Dharma Vir reported in AIR 1969 Jandk 128, S. P. Chengalvaraya Naidu (dead) by LRs versus Jagannath (dead) by LRs reported in AIR 1994 SC 853, Attorney General versus Birmingham, Tame and rea Drainage Board reported in 1881 (17) Chancery Division 685, Jamsetji Manekji kotval versus Hari Dayal reported in ILR XXXIL (Bombay Series) 181 and Amritlal vadilal versus Kantilal Lalbhaj reported in AIR 1931 Bom 280.

( 3 ) LEARNED counsel for the appellants, on the other hand, had drawn my attention to the judgment dated 25th February, 1983 passed by the Civil Judge and the issue no. 1 decided therein. He submitted that the suit for injunction was not a suit on "torts" as it was not based on an action for un-liquidated damages. It was argued that the right to sue survives and the appeal had not abated. Reliance was placed upon the judgments of the Supreme Court in Puran Singh and others versus State of Punjab reported in (1996) 2 SCC 205, Yallawwa versus shantavva reported in (1997) 11 SCC 159, H. A. Malvari (dead) by LRs versus nasiruddin Pirmohd and others reported in (1997) 8 SCC 58 and Manovikas Kendra rehabilitation and Research Institute versus Prem Prakash Lodha reported in (2005) 7 SCC 224.

( 4 ) THE appellants herein, had in 1973 filed a suit for injunction against the respondent praying for the following reliefs:-" (i)The plaintiffs respectfully pray that a Decree be passed in favour of the plaintiffs and against the Defendant and the Defendant be permanently restrained from interfering with and/or interrupting or in any way meddling with the rights and titles and interests and possession and ownership of the plaintiffs over the land involved herein and situated on the southern side of 91, Friends Colony, which is triangular in shape and is located in Khasra No. 1202/1194 measuring 1 bigha 3 biswas shown in brown squares in Annexure "a". (ii)Any other relief deemed fit and proper together with the costs hereof be also awarded to the plaintiffs. "

( 5 ) THE appellants" claimed/claim ownership rights in respect of a triangular plot on the basis of a registered sale deed dated 30th October, 1954 executed in their favour by Mrs. Bishan Dei. The respondent also claimed ownership in respect of the same triangular plot. The legal representatives of the respondent also claim ownership on the same piece of triangular plot as having inherited their right and title from the respondent on his death.

( 6 ) ON the basis of the pleadings of the parties, learned Trial Court framed two issues. The first issue was whether the appellant was the owner and in possession of the property in the suit and the second issue was whether the ap