1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETITION NO.3273 OF 2009. 1. VASANT NARAYAN FULMALI, R/O. SUBHASH ROAD, GANESHPETH, NAGPUR. .. PETITIONER/S. // VERSUS // 1. RATANAKAR S/O PRALHAD DEORAS HOUSE NO.27, WARD NO.7, GANESHPETH, NAGPUR-18 2. ASHOK S/O JANARDHAN BIDWAI R/O SUBHASH ROAD, GANESHPETH, NAGPUR-18 3. DILIP S/O SHYAMRAO GAIDHANE GANESHPETH, SUBHASH ROAD, NAGPUR-18 4. TULSHIRAM S/O SHAMRAO FULMALI PLOT NO.63, VIVEKANAND NAGAR, NAGPUR-1 5. VYANKATESH S/O SHAMRAO FULMALI PLOT NO.174, SURENDRA NAGAR, NAGPUR 6. SMT. VITHABAI W/O LATE NARAYAN FULMALI R/O NEAR JUMLE TAILORING COLLEGE, GANESHPETH, NAGPUR. 7. GANGADHAR S/O NARAYAN FULMALI R/O QTR. NO.118/4, SOMWARIPETH, NEAR CHHOTA TAJBAG, NAGPUR-22. 8. SHRIDHAR S/O NARESH FULMALI GANESHPETH, NEAR GANESHPETH VYAYAMSHALA, NAGPUR 9. BABAN S/O NARESH FULMALI GANESHPETH, NEAR GANESHPETH VYAYAMSHALA, NAGPUR 10. VISHWANATH S/O JAGOBA SAWARKAR GANESHPETH, NAGPUR - 18 2 11. VIJAYSINGH S/O NARAYANSINGH PARIHAR GANJIPETH, BHALDARPURA, NAGPUR-18 12. NANDU S/O VASANT FULMALI R/O SUBHASH ROAD, GANESHPETH, NAGPUR-18 .. RESPONDENT/S. _______________________________________________________________________ Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders. ______________________________________________________________________________ Shri S.P.Kshirsagar, Advocate for Petitioners. CORAM : R.C.CHAVAN, J. DATED : SEPTEMBER 22, 2009. 1. This petition is directed against order passed by learned District Judge, Nagpur refusing to hold that the suit and the appeal, as a whole, had abated on the demise of respondent No.1. The learned Judge rejected the petitioner’s application in so far as it claimed that the suit as a whole is abated. The facts in the context of which this petition is arose are as under : 2. The plaintiffs claimed to have purchased certain property from defendants No.1 and 2. This property did not belong exclusively to defendants No.1 and 2 but was part of the property of the joint family comprising of all the defendants. Petitioner is defendant No.4 in the suit. The plaintiffs had brought the suit for partition and separate possession of share of their vendors i.e. defendants No.1 and 2. The suit was dismissed and the plaintiffs approached the appellate Court. During pendency of the appeal respondent No.1 Tulshiram and respondent No.3 Vithabai died. Their LRs were not brought on record within the prescribed time. The petitioner filed applications at Exh. 31 and 33 praying that 3 the appeal may be held as abated in entirety because of failure to bring LRs of respondents No.1 and 3 on record. The learned Judge by his impugned order held that the appeal does not abate as a whole but it abated only as against the deceased respondent No.1. As far as respondent No.3 is concerned, the allegation is that all the LRs were not brought on record and only one LR was brought on record. Therefore, even against respondent No.3 the appeal has not abated. Aggrieved thereby, petitioner is before this Court. 3. The learned counsel for the petitioner placed reliance on two judgments in B.S.Singh Vs. R.D. Singh, reported at AIR 1973 SC 204. The Supreme Court was considering the case of permanent injunction against 39 defendants directing them to demolish the construction on a land in dispute and held that when there is a joint claim made against several defendants and when some of the defendants die during the pendency, failure of the plaintiff to bring legal representatives of deceased defendant on record results in abatement of appeal in toto. Such are not the facts of the present case. 4. In Zilla Singh V. Chandgi, reported at AIR 1991 SC 263 the plaintiff was claiming to be the adopted son of one Nagar. He had filed suit for possession of the properties of Nagar. The trial Court held that one Sarupi was widow of Nagar and therefore, directed delivery of half share of the property to the plaintiff. The District Judge dismissed the suit holding that there was no valid adoption of Zilla Singh. Zilla Singh filed second appeal before the High Court where the contesting respondent Sarupi died and her legal representatives were not brought on record. In this context the Court held that the appeal abated. It may be seen that in 4 that case the only person interested in the property Sarupi had died and therefore, the appeal was held as abated. Such are not the facts of the present case. 5. In this case, though the decree is sought against defendants No.1 and 2 also, in fact defendants No.1 and 2 have sold the property to the plaintiffs, and therefore, the plaintiffs are seeking partition and separate possession of share the defendants 1 & 2 in the joint family properties of all the defendants. Thus, the plaintiffs are in fact substituting in place of defendants No.1 and 2 in the properties by virtue of having purchased the property. It is purchaser’s suit for partition. Therefore, it cannot be held that on the death of one of the vendors, the suit for partition and separate possession of the properties would abate. 6. In view of this, it cannot be said that the view taken by the learned Judge was incorrect. The petition is, therefore, dismissed. JUDGE RR.