MAHBOOB HASAN KHAN Vs. SYED BASHIR HUSAIN

JUDGEMENT

(1.) This is an appeal from an order of the lower court refusing to set aside the abatement of an appeal. It arises out of a suit filed under Section 59 of the U. P. Tenancy Act praying for a declaration in respect of the plaintiffs' tenancy rights in a grove.

(2.) The trial court held that a suit of this nature should have been filed in the revenue court. It, accordingly, directed that the plaint should be returned to the plaintiff under Order 7, Rule 10, C.P.C. for presentation to the proper court.

(3.) Dissatisfied with the said order, the plaintiff filed an appeal. Respondent No. 8 in this appeal was one Zafar Ahmad. He died. No steps were taken by the appellant to have his legal representatives brought on record within the period of limitation provided therefor. Three years after his death, the appellant made an application . for setting aside the abatement of the appeal against respondent No. 8 on the ground that he had no knowledge of the death of respondent No. 8 till 2-10-1953. The lower appellate court disbelieved the allegation of the appellant, and held that the appeal had abated agaiast respondent no. 8. It further held that the result of the abatement of the appeal against respondent No. 8 was that the whole appeal was incompetent. It, accordingly, dismissed the appeal with costs. The appellant has filed this appeal from the order of the lower appellate court refusing to set aside the abatement of the appeal against respondent No. 8. The memo of appeal shows that it has been tiled under Order 43, Rule 1 (k), C.P.C.