ash 1 sa-712.91 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION SECOND APPEAL NO. 712 OF 1991 1. Shri Shankar Sarjerao Powar, ) since deceased by his L.Rs.&L.Hs. ) 1(A) Raju Shankar Powar, ) Age about 33 years, ) 2. Shri Sambhaji Shankar Powar, ) Age 32 yrs., Occ. Agriculturist, ) 3. Shri Shivaji Shankar Powar, ) Age 28 yrs., Occ. Agriculturist, ) All R/o. Nandani, Tal. Shirol, ) District – Kolhapur. ).. Appellants ( Org. Defendants ) Vs Smt. Tanibai Subhanna Bhui, ) since deceased through her L.Hs.& Lrs., ) 1. Shri Pundalik Subhanna Bhui, ) Aged 66 years, ) 2. Shri Dattatraya Subhanna Bhui, ) Aged 51 years, occ. Service, ) Nos.1 & 2 resident of Nandani, ) Taluka Shirol, Dist. Kolhapur, ) 3. Smt. Kisabai Shankar Ayre, ) Aged 67 years, Occ. Household, ) R/o. Danoli, Tal. Shirol, ) Dist. Kolhapur. ) 4. Sow. Shanta Bhui Laxman Gavli, ) Aged 47 years, Occ. Household, ) R/o. Haripur, Tal. Miraj, ) Dist. Sangli. ) ash 2 sa-712.91 5. Sow. Alkatai Ramchandra Yadhav, ) Aged 35 years, Household, ) resident of Sukhuwadi, ) Taluka-Tasgaon, Dist. Sangli. ) 6. Sow Rekha Appaso Naik, ) Aged 30 years, Occ. Household, ) resident of Khanchnal, ) Taluka Chikodi, Dist. Belgaum, ) Karnataka State, ) Respondent Nos.5 and 6 are legal ) heirs of Appellant No.1. ).. Respondents (Org. Plaintiffs ) -- Shri Nagesh Chavan i/by Shri T.S. Ingale for the Appellants. Shri A.M. Kulkarni for Respondent Nos.1 to 4. -- CORAM : A.S. OKA, J DATED : 11TH NOVEMBER, 2011 ORAL JUDGMENT : . Heard learned counsel appearing for the Appellants. The Appellants are the Original Defendants. One Tanibai Subhanna Bhui was the original Plaintiff who filed a suit for perpetual injunction restraining the Appellants from causing obstruction to her alleged possession and enjoyment of open space in front of her house. The Trial Court dismissed the suit. An Appeal was preferred by the said Tanibai (Original Plaintiff) through her Constituted Attorney before the District Court. By the impugned judgment and decree, the said Appeal was allowed and by setting aside the decree passed by the Trial Court, a decree for perpetual injunction was passed against the Appellants. ash 3 sa-712.91 2. Learned counsel appearing for the Appellants pointed out that the original Plaintiff Tanibai who was the sole Appellant before the District Court died on 10th April, 1988. He pointed out that legal representatives of Tanibai were not brought on record of the Second Appeal and, therefore, the Appeal before the District Court stood abated. He pointed out that notwithstanding the abatement, on 7th March, 1991 the impugned decree has been passed. He has produced on record a certified copy of the death certificate of Tanibai. She died on 10th April, 1988. The death certificate is marked “X” for identification. He, therefore, submitted that the impugned decree is vitiated. 3. I have considered the submissions. Perusal of the certified copy of the impugned judgment as well as the impugned decree of the District Court shows that the deceased Tanibai is shown as the only Appellant in the cause title. Initially only the said Tanibai was impleaded as a party to this Second Appeal. Notice of Appeal was issued to the said Tanibai. The notice was returned unserved with the remark that the said Tanibai had died three years back. I have perused the report of the Bailiff dated 5th February, 1992 which records that the said Tanibai died three years back. There is also a report of the Police Patil of the same date. The return is accompanied by an affidavit dated ash 4 sa-712.91 13th February, 1992 of the concerned Bailiff in which he has reiterated that the said Tanibai died approximately three years back. It appears that after the said report was received by this Court, a Civil Application being Civil Application No.5667 of 1993 was taken out by the Appellants for bringing legal representatives of the deceased on record. In the said Civil Application, there is an assertion that Tanibai died on 10th April,1988. Thus, when the District Court decided the Appeal, the same already stood abated. Only on this ground, the impugned judgment and decree will have to be quashed and set aside. Hence. I pass the following order: ORDER : (i) The impugned judgment and decree dated 7th March, 1991 in Regular Civil Appeal No.39 of 1987 is quashed and set aside only on the ground that the Appeal had abated; (ii) Regular Civil Appeal No.39 of 1987 stands abated and is disposed of as such; (iii) Second Appeal is allowed on above terms with no orders as to costs. ( A.S. OKA, J )