The main legal point established in the judgment is that the deceased respondent was not a necessary and proper party to the suit and the proceedings, and therefore, the appeal did not abate due to the failure to bring on record the legal representatives of the deceased respondent.

Hasnain Massodi, J.

1. Abdul Aziz Shawl S/o. Salam-din-Shawl R/o Kalashpora, Srinagar respondent No. 5 in CIMA No. 105/1999 passed away on 17th July 2006. The appellant has filed instant application with the prayer that respondent No. 5 be deleted from array of respondents. The appellant obviously did not take steps to bring on record legal representatives of the deceased respondent, within the time prescribed under law. This has emboldened respondents 1 to 4 to oppose application on the ground that the appeal has abated because of failure of the appellant to bring on record legal representatives of the deceased respondent and, is to be dismissed along with application for deletion of respondent No. 5 from the array of respondents. The background facts may be noticed, in first instance. The appellant on 3.05.1984 filed a suit for declaration and permanent injunction. His case in the suit was that he and defendant No. 1 were owners in possession in equal shares of plot of land measuring 10 kanals and 12 marlas, comprising survey No. 438 Khewat No. 9 situated at Gulab Bagh, Tehsil Ganderbal, having purchased it from the original owners vide sale deed dated 03.05.1974 and registered on 20.12.1974; that the suit land was partitioned by appellant and respondent No. 1 by private partition and he was in possession of 5 kanals and 6 marlas out of the suit land; that defendants 2 to 4 relying on agreement to sell claimed to have been executed by plaintiff and defendant No. 1 in their favour through defendant No. 5 on 19.10.1977 and registered on 27.10.1977 were interfering with his possession over suit land. It was pleaded that agreement to sell in question was tainted with fraud, hit by Jammu and Kashmir Agrarian Reforms Act and did not confer any right on the defendants 2 to 5. He on the grounds pleaded sought declaratory decree, declaring agreement to sell dated 19.10.1977 registered on 27.10.1977, a nullity and not to confer any right on defendants 2 to 5 and to declare plaintiff as owner in possession of 5 kanals and 6 marlas, out of the suit land. The appellant also sought decree of permanent injunction, restraining defendants from interfering with the suit land. The suit was amended on 4.02.1999 and plaintiff permitted to incorporate relief of decree for possession, to the relief clause in the plaint.

2. The Trial Court dismissed the suit on 23rd July 1999. The trial court judgment was questioned in Civil first Miscellaneous Appeal being CIMA No. 105/1999. The appeal was allowed on 01.11.2004 and the trial court judgment dated 23rd July 1999 set aside. The suit was remanded for fresh disposal. The judgment of the appellate court was assailed by defendants 2 to 4 in the Letters Patent Appeal being LPA No. 65/2006. The Letters Patent appeal was accepted on 04.06.2014 and appellate court judgment set aside and appeal directed to be heard afresh.

3. The pendency of the Letters Patent Appeal, however, appears not to have come in the way of trial court to deal with the civil suit on its remand. Learned Additional District Judge, Srinagar after the suit was remanded considered the matter afresh and vide judgment dated 28.02.2005, allowed the suit and passed a decree in ex-parte in favour of the appellant and against the respondents. The trial court judgment dated 28.02.2005 is questioned by defendants 2 to 4 in CIA No. 07/2006. Both the appeals i.e., CIA No. 105/1999 and CIA No. 07/2006 are pending adjudication. So much about the background facts. Let us now shift focus to the application for deleting respondent No. 5 from the array of respondents.

4. Appellant's case is that respondent No. 5 was only a proforma respondent and against him no relief was sought in the plaint or CIA No. 105/1999 and that appellant was free to delete the respondent No. 5 from the array of respondents. It is pointed out that even respondents 2 to 4 filed and prosecuted Letters Patent Appeal against the appellate court judgment dated 01.11.2004, withou