The central legal point established in the judgment is the importance of adjudicating on the substitution of deceased defendants' legal representatives, exemption to the plaintiff, and abatement, and the need for the parties to appear before the first appellate court for a fresh decision.

JUDGMENT :

Vivek Singh Thakur, J.

1. Appellant/plaintiff has approached this Court assailing concurrent finding of the Courts below. Suit as well as appeal filed by him have been dismissed by the trial Court and first Appellate Court respectively. Respondents or their predecessors-in-interest are/were defendants in the suit. Parties, for convenience shall be referred as plaintiff and defendants.

2. Civil Suit filed by plaintiff on 3.8.2004, seeking declaration that he has acquired ownership right in the suit land by way of adverse possession, was dismissed on 30.9.2013 by the trial Court. Appeal preferred by plaintiff on 2.11.2013 has also been dismissed by first Appellate Court on 23.2.2019.

3. On filing present appeal on 22.5.2019, notices were issued to the respondents and during service of respondents, notices issued to respondent No. 7 Nek Singh and Respondent No. 18 Kuldeep Singh have been received back with report that Nek Singh has expired on 30.9.2017, whereas respondent No. 18 Kuldeep Singh had expired on 7.2.2016, which indicates that both of them had expired during pendency of first appeal before learned District Judge (1), Kangra at Dharamshala.

4. Appellant/plaintiff has preferred two applications CMP (M) Nos. 54 and 55 of 2020 for substitution of aforesaid deceased respondents through their respective legal heirs after setting aside the abatement, if any, on the ground that factum of death of these respondents was not in the knowledge of appellant/plaintiff and appellant/plaintiff has gained knowledge about their death only when notices issued to them in present appeal were received back with such report.

5. Relevant provision, dealing with substitution/deletion of deceased defendant or exemption to the plaintiff from necessity of substituting legal representatives of any deceased defendant, is Order 22 Rule 4 C.P.C. which reads as under:-

"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.

(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.

(3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant.

(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.

(5) Where-

(a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963), and the suit had, in consequence, abated, and

(b) the plaintiff applies after the expiry of the period specified therefor in the Limitation Act, 1963 (35 of 1963), for setting aside the abatement and also for the admission of that application under section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said act, the Court shall, in considering the application under the said section 5 have due regard to the fact of such ignorance, if proved."

6. Order 22 Rule 4(1) C.P.C. provides that legal representatives of decease