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Hatim Vs. Sheikh Sadiq HusaIn and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in112Ind.Cas.605
AppellantHatim
RespondentSheikh Sadiq HusaIn and ors.
Excerpt:
civil procedure code (act v of 1908), order xli, rule 2 - abatement--decree for possession and demolition of building in favour of several persons--abatement of appeal as against one--total abatement. - .....say was owned by them. the court of first instance dismissed the plaintiffs' suit, bud on appeal the appeal was allowed and the plaintiffs' suit was decreed and the defendants were allowed two months within which to remove the construction. an, appeal was filed by hatim against the judgment and decree of the district judge. proceedings were taken by the appellant to stay the execution of the decree. in the course of the hearing of the application for stay of execution an affidavit was filed by madho lal in this court on the 25th may, 1923, in para. 11 of which it was stated that sirajul haq plaintiff-respondent had died on the 30th november, 1925, after the decision of the case by the lower appellate court, and in para. 13 of this affidavit it was stated that the.....
Judgment:

Banerji, J.

1. A preliminary objection has been raised to the hearing of this appeal. Plaintiffs--seven in number--instituted a suit against the appellant Hatim praying for three reliefs, demolition of certain constructions on certain land, possession over that land, and a perpetual injunction restraining Hatim from making any construction, or any improper use of plot No. 1026/8 which the plaintiffs, say was owned by them. The Court of first instance dismissed the plaintiffs' suit, bud on appeal the appeal was allowed and the plaintiffs' suit was decreed and the defendants were allowed two months within which to remove the construction. An, appeal was filed by Hatim against the judgment and decree of the District Judge. Proceedings were taken by the appellant to stay the execution of the decree. In the course of the hearing of the application for stay of execution an affidavit was filed by Madho Lal in this Court on the 25th May, 1923, in para. 11 of which it was stated that Sirajul Haq plaintiff-respondent had died on the 30th November, 1925, after the decision of the case by the lower Appellate Court, and in para. 13 of this affidavit it was stated that the defendant-appellant had full knowledge of the death of Sirajul Haq.

2. No steps were taken to bring the heirs of Sirajul Haq on the record. The preliminary objection taken by Dr. Faruqi is that as regards Sirajul Haq the decree of the lower Appellate Court directing the demolition of the construction and granting the perpetual injunction to him has become final. Nor can defendant in any case claim to get back possession of the property from Sirajul Haq.

3. Under these circumstances, I am of Opinion that the appeal of the appellant Cannot be heard as in any case the decree of the lower Appellate Court directing demolition of the construction and the injunction qua Sirajul Haq having become final, no relief can be granted to the appellant. The appeal is therefore, dismissed with costs.


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