1979 Supreme(MP) 383

IN THE HIGH COURT OF MADHYA PRADESH
G. G. SOHANI, J.
Municipal Council, Mandsaur - Appellant
Versus
Fakirchand - Respondent
S. A. No. 115 of 1968 (I)
Decided on : 31-08-1979

Headnote:(1) Municipalities Act, 1961 (M. P.) – S. 328 (6) – appeal filed in the name of administrator and not by municipal council – administrator empowered to do all the acts which the municipal council was empowered to do – appeal proper.

       (2) Civil Procedure Code, 1908 – O. 22, R. 9 – three brothers filed the suit as re – presentatives of the joint family – one of them dies – remaining two represent the joint family – legal representatives of third brother – not brought on record – suit does not abate.

        Short Note

       1. The plaintiff – respondents, along with their brother Motilal instituted a suit against the appellants for a permanent injunction. The plaintiff's case was that the suit property, which is a piece of open land, was in possession of the plaintiffs for more than eighty years and that the Municipal Council, Mandsaur had no right, title to or interest in the suit land. The plaintiffs prayed that the defendant Municipal Council be restrained from interfering with their possession over the suit hind. The suit was initially decreed but on appeal it was remanded. On behalf of the respondents, two preliminary objections were raised. It was contended in the first place that the appeal filed before this Court was not competent as it was filed by the Administrator in his own name and not by the Municipal Council. Secondly, it was contended that one of the plaintiffs Motilal had died when the matter was pending before the lower appellate Court and his legal representives were not brought on record. It was urged that in the absence of the legal representatives of Motilal being brought on record, the appeal pending before the appellate Court had abated as a whole.

       2. Held : The Municipal Council was dissolved by the State Government when the appeal was filed and one Narendraprasad was appointed as the Administrator by the State Government under section 328 (6) of the M. P. Municipalities Act, 1961. From a perusal of the aforesaid provision, it is clear that Mataprasad was entitled to do all the acts which the Municipal Council was empowered to do under the provisions of the Act. The objection raised to the competency of the appeal cannot therefore be upheld.

       3. So far as the second objection is concerned, it is admitted that the suit was filed by the three brothers jointly. They claimed that they had succeeded the suit property after the death of their father. A decree was passed in their favour by the trial court and the defendant had therefore, preferred an appeal before the lower appellate Court impleading all the three plaintiffs as respondents. Before the lower appellate Court, the appellant, submitted an application that the name of Motilal, who died during the pendency of the appeal, be struck out from the array of respondents. The application was allowed and thus the names of the legal representatives of deceased respondent Motilal were not brought on record. The three brothers filed the suit as representatives of the joint family. This cannot be considered to be a suit by a Karta of the Joint Hindu family, but by three members of the Joint family entitled to represent the family. In the instant case, it must be held that in the absence of any allegation or proof that after the death of Motilal the authority of the surviving brothers to represent the family was continued by the members of the family, the appeal against Motilal and his legal representatives had abated. Union of India v. Shriram, AIR 1965 SC 1531, relied on.

       Appeal dismissed.