R.C. Gandhi, J.
1. This Letters Patent Appeal has arisen out of judgment and decree dated December 3, 1999 whereby the learned Single Judge has dismissed the Civil 1st. Appeal No. 10 of 1988 filed by the appellants against the judgment and decree dated 29.2.1988 passed by the Additional District Judge, Jammu, in a suit for possession filed by the plaintiff-respondent No. 1 herein.
2. Brief facts of the case are that Smt. Raj Kumari widow of late Shri Chatter Singh owned property consisting of a house and land appurtenant thereto situated at Darbargarh Road, Jammu. Mst. Chander Prabha was the only daughter born out of the wedlock, who was married to Sarban Singh. Out of this wedlock, five children namely, Smt. Krishna Rajput, Smt. Sharmishta Rajput, Smt. Chandrika Bhola, Smt. Roma Bani daughters and Rajinder Singh son, were born. Mst. Raj Kumari executed will dated 22.12.1964 which was her last testament, bequeathing the major portion of the property, inclusive if the suit property, in favour of Rajinder Singh, grand son of Mst. Raj Kumari. She, however, bequeathed some property to her daughter Smt. Chander Prabha and four daughters of Smt. Chander Prabha, grand children of Smt. Raj Kumari. Raj Kumari, the Testator died in May 19,1969. All the four daughters, named above, beneficiary of the Will challenged the correctness of the will executed by their grand mother in Suit No. 27-A of 1970 in the High Court on the ground that the Testator was not of sound mind at the time of the execution of the will. The suit was dismissed on December 21, 1978. The decree of dismissal of the suit was challenged in a Letters Patent Appeal titled Smt. Krishna Rajput v. Rajinder Singh and Anr. which also came to be dismissed, upholding the validity of the will. Rajinder Singh became the owner of the property bequeathed in his favour by virtue of the operation of the will.
3. Some portion of the property bequeathed to Rajinder Singh was in possession of the appellants, his sisters. Despite service of notice by Rajinder Singh they did not surrender the possession. He instituted a suit for possession and ejectment which was resisted by the appellants/defendants. The suit was decreed in favour of Rajinder Singh holding that it is barred on the principle of Resjudicata. Appellants challenged the judgment and decree by means of Appeal No. 10 of 1988. Mst. Chandrika Bhola, also a beneficiary of the will did not contest the suit. She was arrayed as party-respondent No. 2 in the appeal.
4. During the pendency of the appeal, appellant No. 1 Smt. Krishna Rajput died on Sept. 13, 1988. Shri Sarang Bani adopted son of Krishna Rajput deceased filed CMP No. 165/94 on 9.9.1994 for bringing him on record as legal representative of the deceased which was allowed on 14.11.1994. On 3.3.1994 appellant No. 2 Smt. Sharmishta also died. One Samir Bani claiming to be the adopted son of Miss Sharmishtra Rajput, appellant No. 2 deceased, filed CMP No. 144 of 1998 under Order 22 Rule 4 CPC seeking to bring him on record as legal representative of the deceased-appellant. Along with this application, an application under Section 5 of the Limitation Act was also filed, seeking to condone the delay in approaching the court. It was resisted by the respondent Rajinder Singh. The learned Single Judge after hearing the learned Counsel for the parties and relying upon, the judgment in case Maya Ram v. Nanak Chand, reported in 1993 KLJ 174 and judgment delivered by this Court in CIMA No. 115/88 titled Sohan Lal Khorana v. Sampuran Singh and Ors. decided on 4.6.1999, the averments of the subsequent suit No. 266/Civil of 1997 filed by the plaintiff/Appellants for mandatory injunction on the ground of alleged adverse possession and also the written statement filed by Rajinder Singh defendant therein, dismissed the application seeking to condone the delay and also held the appeal abated as a whole to condone the delay and also held the appeal abated as a whole being the cause of action not divisible, vide order under appeal.
5. Aggrieved of the judgment and the order of the learned Single Judge, the appellants including Samir Bani, appellant No. 2, challenged the correctness and legality of the judgment under appeal, on the ground that Samir Bani seeking substitution was not having knowledge of the pendency of the appeal, therefore, application for condonation of delay should not have been dismissed without affording him an opportunity for leading evidence in support of the application and that the reliance placed on the averments of the plaint of the appellants and written statement of the respondent is not permissible in law unless it is proved in terms of the provisions of Section 145 of the Evidence Act. It is also stated that if Samir Bani is not brought on record, in that event, the appeal abates against him and the decree becomes final against him alone as the cause of action is divisible and separable. It is further stated that only application for condonation of delay was argued and no submissions were made with regard to the maintainability of the appeal and the learned Single Judge was not right in dismissing the appeal as abated.
6. We have heard the learned Counsel for the parties and perused the record. Out of the pleadings it is made out that out of four sisters, beneficiaries of the will, Chandrika Bhola is not a contesting party. Smt. Krishna Rajput and Smt. Sharmishta Rajput original appellants No. 1 and 2 were unmarried and now deceased. Sarang Bani and Samir Bani are the sons of Smt. Roma Bani sister of Smt. Krishna Rajput and Smt. Sharmishta Rajput respectively. Therefore, the contours of the litigation with regard to the disputed property, revolve around the original members of the family of Smt. Roma Bani on one side and Rajinder Singh, brother of Smt. Roma Bani on the other side.
7. Mr. L.K. Sharma learned Counsel for the appellants while attacking the judgment under appeal has submitted that the learned Single Judge has committed an error in appreciating the fact that Samir Bani was not having knowledge of the pendency of the appeal and has arrived at wrong conclusion that sufficient cause, which prevented him to approach the court within reasonable time, is not made out. It is also submitted that the learned Single Judge was not right in noticing and taking into consideration the averments of the plaint No. 266/Civil filed by the appellants on 19.2.1977 for permanent prohibitory injunction and also the written statement of the defendant/respondent Rajinder Singh. His specific submission is unless the evidence is proved in terms of Section 145 of the Evidence Act it should not have been relied upon and considered.
8. In appreciating his submissions, it is obligatory upon him in law to make out convincing and plausible sufficient cause, which prevented him from approaching the court in filing the application for impleadment as Legal Representative of the deceased -- appellant No. 2. The facts and record reveals that Smt. Sharmishta Rajput Appellant No. 2 died on 13.9.1988 and the application seeking impleadment as Legal Representative was presented on 3.9.1998. He has to explain what prevented him during these long ten years to approach the court. The period explained in terms of the sufficient only is that he came to know about the filing and pendency of the appeal in the month of August 1998. It is seen from the record of the suit was filed by the appellants in the month of February 1997 before the court of 1st Additional Munsiff (Forest) Jammu, wherein, respondent Rajinder Singh filed his written statement promptly in February 1997. Respondent in reply to para-5 of the plaint has replied that 'plaintiffs' have filed an appeal which is pending in the hon'ble High Court.' Written statement filed by the respondent itself provides knowledge to the appellant in the month of February 1997 that appeal filed by the appellants/plaintiffs is pending in the High Court. Appellants are living in the same house and are blood relations. It does not appeal to senses that while his mother, his brother, his aunts are contesting the suit and the appeal and he is not aware of the proceedings in the same house. It is also not stated by Samir Bani that from whom he received knowledge of pendency of the appeal. It is bald assertion. Reference of averments of the plaint and the written statement, therefore, was significant as it controverts the stand of the appellant that he received the knowledge of the pendency of the appeal in August 1998. This statement of the appellant that he acquired knowledge in August 1998 appears to be false.
9. Mr. Sharma learned Counsel is right in his submission that a document, if not proved cannot be used in evidence. Notwithstanding that, the plaint is a document containing the statement of facts and the written statement is admission and denial of the averments of the plaint. For purpose of reference it can be noticed by the court being this record as legal documents. Even if an opportunity of proving it is provided, the result would have been the same as pendency of the appeal before the court as stated in the written statement could not be denied, which fact is unrebuttable. The apex court dealing with an application to condone the delay and set aside the abatement, in case Govind Rao v. Mahadev reported in : AIR1977SC627 made after delay of 25 days beyond the time prescribed by law for moving the court, noticed that the parties were closed relations, as herein, dismissed the application with the observation contained in paras 2 and 4 of the judgment which are extracted as under:
'2. The parties are closed relations and it is admitted that the first appellant was present for the funeral of the second appellant. What is more, the respondent had filled an application to declare that the appeal had abated as early as February 8, 1975 and still no application was filed by the first appellant for setting aside he abatement in time.
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4. We see no merit in either point. The medical certificate is not convincing and an overall view of the facts and the close relationship of the parties and the circumstance that the first appellant has two adult sons satisfies us that there is no sufficient cause for condonation of the delay or for setting aside the abatement.'
10. We are conscious of the rigors of law of abatement and condoning the delay for substitution of heirs and Legal representative. It is the legal duty of the person seeking impleadment as legal representative by condoning the delay in approaching the court to explain the delay and make out sufficient cause. No doubt, sufficient cause should be given a liberal interpretation to ensure that substantial justice is done but rigors of law cannot be sacrificed for negligence, inaction and lack of bonafides imputed to the party seeking such a relief. In this backdrop, appellant has not satisfactorily explained delay of ten years making out sufficient cause to condone the delay and the appellate court was right in dismissing the application.
11. So far as the question of abatement of the appeal is concerned it is settled law that on the death of the appellant, if application is not moved for bringing on record the legal representatives, the abatement is automatic. It has been settled by the Supreme Court in case titled Mithailal Dalsangar Singh and Ors. v. Annabai Devram Kini and Ors. Reported in : AIR2003SC4244 holding that:
'Abatement of suit for failure to move an application for bringing the LRs on record within the prescribed period of limitation is automatic and a specific order dismissing the suit as abated is not called for. For a period of ninety days from the date of death of any party the suit remains in a state of suspended animation. And then it abates.'
12. Mr. Sharma has also submitted that if Samir Bani has not been brought on record, as legal representative of appellant-2 deceased, the appeal must survive on behalf of other appellants. In appreciating this plea of Mr. Sharma, it is to be seen as to whether the cause of action is joint and inseverable or separable. If the plea of Mr. Sharma is accepted, there are chances of conflicting judgments. The appellants have a joint cause of action against the respondents. The appellants have pleaded that they are in joint possession of the suit property and never claimed separate independent right in a separate portion of the suit property. They have also pleaded in their Suit No. 266/Civil instituted on 19.2.1997 in the court of Munsiff, Forest Magistrate that they claim to be the joint owners by virtue of adverse possession of the suit property. Therefore, right of the appellants is joint, indivisible and inseparable. In an appeal before the Supreme Court, arising out of suit filed for redemption of usufructuary mortgage by respondents on accrual of the right to redeem mortgage and recover possession wherein joint and inseverable preliminary decree was passed for redemption, during the pendency of the appeal titled (Bibijan v. Murlidhar reported in : (1995)1SCC187 the appellants No. 1 and 5 died. No application was made to bring on record the legal representatives within the statutory period prescribed by Limitation Act. The court observed as under:
'... Admittedly, no applications had been made to bring on record the legal representatives of the deceased appellants 1 and 5 from the respective dates, before the expiry of 90 days, their appeal stood abated. The question is whether the appeal of other appellants also abates. It is the joint and inseverable decree of redemption granted in favour of respondents, which was questioned in the appeal. When that decree of redemption against appellants 1 and 5 had come to stand because of abatement of their appeal, that decree of redemption against appellants 2 and 4 alone cannot be set aside, for in that event decree of redemption made against appellants 1 and 5 questioned in the appeal would stand while the decree against appellants 2 and 4 alone calls to be set aside. Since the decree for redemption being joint and inseverable, the appeal cannot be continued. In this view of the matter, the entire appeal stands abated.'
13. In case Badni v. Siri Chand reported in : AIR1999SC1077 the proposition before the Supreme Court was that plaintiffs filed suit for possession of the suit property by way of redemption, which was deceased. Defendants filed Second Civil Appeals which were dismissed for the reason that L/Rs of the deceased-appellant were not brought on record. The High Court dismissed connected six appeals to avoid conflicting decree on the common issue. It was challenged before the Supreme Court in case (supra). The Apex court dealing with it observed as under:
'We have noticed earlier that the common issue for consideration in all the appeals before the High Court was whether the claim of the plaintiff-respondents for possession of the suit land on the basis of adoption was sustainable. The courts below having found the adoption in favour of the plaintiffs, the consequence will be that the issue of adoption in respect of Shiv Lal's appeal would become final in that RSA, resulting in the abatement of that RSA as well as other RS appeals to avoid conflicting decrees.'
14. For the aforesaid reasons we are of the considered view that the judgment and decree under appeal do not suffer from any illegality and deserves to be maintained. It is accordingly maintained and the appeal is dismissed.