IMPORTANT POINT
In case of appeal and cross appeal between three appellants and respondent when one appellant dies and his legal heirs are not brought on record, both appeals shall abate in toto.

JUDGMENT :

AJAY RASTOGI, J.

1. The aforesaid civil appeals arise from the impugned judgment dated 22nd November, 2005 passed by the High Court of Andhra Pradesh at Hyderabad in Appeal No. 1146 of 1996(and cross objections) confirming the judgment and decree passed by the learned trial Court dated 12th October, 1995 in Original Suit No. 175 of 1987 whereby the Courts below have inter alia decreed the suit schedule ‘A’ and ‘B’ properties and have dismissed the suit qua schedule ‘C’ property filed by the respondents/plaintiffs.

2. When the aforesaid civil appeals were taken up for adjudication, the respondents/plaintiffs raised a preliminary objection to the prosecution of the appeals on the ground that the civil appeals have abated in toto. It is to be further noticed that the defendant no. 2 Goli Sathiraju died on 21st February, 2006 and his legal heirs have not chosen to come on record and when the matter was listed before the Chamber Judge, it was observed vide Order dated 24th July, 2009 as follows:-

“IA No. 2 in SLP(C) No. 9401/2006 is for deletion of petitioner no. 2 who is stated to have died on 21/2/2006 and his LRs have not chosen to come on record. Hence, the matter abates insofar as petitioner no. 2 is concerned. I.A. No. 2 is allowed.

Petitioner no. 2 in SLP(C) No. 9401/2006 is the respondent no. 2 in the connected SLP(C) No. 19919/2006. SLP(C) No. 9401/2006 insofar as petitioner no. 2 is concerned stands abated. In view thereof, petitioner is permitted to delete respondent no. 2 from the array of parties. I.A. No. 3 is allowed.”

3. When the matter came before the Court on 10th May, 2018, taking note of the view expressed by the Chamber Judge dated 24th July, 2009, it was observed that in view of the appeal stood abated qua the appellant no. 2, therefore, the appeal in entirety stands abated. Learned counsel for the appellants sought time to examine the issue regarding the abatement of the proceedings in view of the fact that the appeal stood abated qua appellant no. 2 in terms of order dated 24th July, 2009.

4. The seminal facts which are relevant for the present purpose are that the original plaintiff Yendru Sathiraju filed O.S. No. 175 of 1987 before the learned trial Court praying inter alia declaration of title in respect of schedule ‘A’,’B’ & ‘C’ properties and for recovery of possession from the defendants/appellants. The prayer is as follows:-

“18. Plaintiff therefore prays that the Hon’ble Court may be pleased to pass a decree in his favour:

(a) Declaring his absolute title to the plaint A, B and C schedule properties and for recovery of possession thereof after evicting the defendants there from;

(b) Granting a mandatory injunction directing the defendants to restore opening in the northern compound wall in between plaint B and C schedule properties and put up the doorway in its former position;

(c) for costs of the suit; and

(d) for such other relief’s as may deem fit and proper under the circumstances of the case.”

5. Written statement came to be filed by the defendant no. 1 which was adopted by the defendant nos. 2 and 3 before the trial Court. Although an averment was made in the written statement that the suit schedule ‘A’ property fell to the share of defendant no. 1 and the Suit schedule ‘B’ property fell to the share of defendant no. 2. The trial Court after adjudicating the matter was pleased to pass a partial decree declaring the title and ownership of the plaintiff/respondent to Suit schedule ‘A’ and ‘B’ properties and directing the defendants/appellants to deliver possession of the same to the plaintiff/respondent. Against schedule ‘C’ property, the claim of the plaintiff/respondent was rejected vide judgment and decree dated 12th October, 1995. The decree passed by the trial Court is as under:-

“In the result, the suit is decreed in part with proportionate costs (1) declaring the title and ownership of the plaintiff to plaint ‘A’ and ‘B’ schedule properties (2) directing the defendants to deliver possession