AZIZUR REHMAN Vs. AMINUDDIN

JUDGEMENT

(1.) This appeal was admitted to hearing on the 17th of October, 1969, and when the process was issued for being served on respondent No. 4 Ahsanul Rehman, according to the averments in Civil Miscellaneous 1279 of 1970, it came back unserved with the note that he had died. The said application was kent pending by me in terms of the order made on the llth of December, 1972. It is stated in paragraph 3 of the said application that Ahsanul Rehman had died on 11th of July, 1968 and his death was registered five days later in the Corporation on the 16th of July, 1968. The application states that in view of the death of Ahsanul Rehman before the passing of the decree by the court of first appeal the appeal before that court had abated. The application was filed in this court on the 31st of August, 1970.

(2.) I have heard Bawa Shivcharan Singh in support of the appeal and at my instance he has taken me through the relevant portions of the amended plaint out of which the litigation arises. The averments contained in paragraph 2 of the plaint disclose that Ahsanul Rehman would have inherited a specified interest in the immovable property in dispute on the basis of the will executed in December, 1925. No adjudication could have been made by the court below without impleading the legal representatives of Ahsanul Rehman. Had it been brought to the notice of the court below Ahsanul Rehman had died on the llth of July, 1968, the impugned order dated the 30th of April, 1969, would not have been made.

(3.) It was the duty of the parties appearing before the Additional District Judge to bring to his notice that one of the parties to the appeal, who had an alleged claim to a specified extent in the immovable property, had died during the pendency of the appeal.