MOHAR SAY Vs. RAMDAYAL S/O KUSHTO

JUDGEMENT

(1.) Heard on admission and formulation of substantial question of law in this second appeal preferred by the defendant under Section 100 of CPC.

(2.) Plaintiff - Rukni Bai filed a civil suit for declaration of title and restoration of possession of the suit land from defendant No. 8 - Mohar Say, which was eventually decreed by the trial Court on 19/09/1994, against which defendant No. 8 preferred first appeal before the first appellate Court. During the pendency of the first appeal, Rukni Bai died on 13/01/1998. In the said appeal, defendant No. 8- Mohar Say filed a will deed dated 10/12/1997, and claimed that Rukni Bai had bequeathed the suit property in his favour. The copy of the will deed was produced by defendant No. 8- Mohar Say before the first appellate Court under Order 41 Rule 27 of the CPC but learned first appellate Court dismissed his application and the will deed was not taken on record and thereafter, the appeal was also dismissed on merits by its judgment and decree dated 29/01/2005 against which this second appeal has been preferred by defendant No. 8 - Mohar Say.

(3.) Mr. Ashok Kumar Shukla, learned counsel for the appellant/defendant would submit that since suit property has already been bequeathed by Rukni Bai in favour of the appellant herein i.e. Mohar Say (now, his legal representatives), therefore, they may be allowed to withdraw this second appeal with liberty to proceed further as and when cause of action arises in their favour.