IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 620 of 2009 Date of decision: 29.12.2010. Avinash Mishra …Petitioner. Versus Smt. Satya Devi and others. …Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioner: Mr. Deepak Kaushal, Advocate. For the respondents: None. Deepak Gupta, J. (oral) 1. This petition is directed against the order dated 17.09.2009 passed by the learned Civil Judge (Jr. Division), Nahan, whereby he rejected the application filed by the defendants for a direction that the suit filed by Dev Dutt Mishra be disposed of as having abated. 2. Respondent No.1 Dev Dutt Mishra, (here-in-after referred to as the plaintiff) filed a suit in the trial Court claiming that the father of the parties Shri Ram Chander Mishra had executed a gift deed in respect of the suit property, which was vacant land at the relevant time measuring 223-47 square metres, in favour of the plaintiff 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. 2 Dev Dutt Mishra and his brother defendant No.2 Om Dutt Mishra. In the plaint itself it was alleged that after the gift deed was executed in the year 1962, with the consent of defendant No.2 plaintiff raised a double storeyed house on the suit land out of his own funds. According to the case set up by the plaintiff, defendant No.1 had unauthorizedly and forcibly occupied the upper storey of the said house of the plaintiff and therefore, the suit was filed for possession of the aforesaid premises. 3. Defendant No.2 died during the pendency of the suit and the plaintiff made a statement that his LRs are not to be brought on record. Thereafter, the application was filed that the suit be disposed of as having abated. 4. In my view, the suit does not abate because according to the plaintiff, defendant No.2 had granted him permission to raise construction of the building and that such building was constructed out of the funds of the plaintiff himself. Therefore, no joint right of defendant No.2 was involved. Furthermore, defendant No.2 never contested the suit and was proceeded against ex-parte. There is no common interest between the plaintiff and defendant No.2 as far as the present suit is concerned and the right to claim possession is of the plaintiff himself and not of deceased Shri Om Dutt Mishra. Therefore, the learned trial Court rightly rejected the application filed by the defendants. The petition 3 is accordingly dismissed. The petitioner is directed to appear before the learned trial Court on 14th February, 2011. The Registry is directed to send back the records of the learned trial Court so as to reach well before the next date. No order as to costs. 29th December, 2010 (Deepak Gupta) ™ Judge