LAXMAN DAS Vs. BOARD OF REVENUE U P

JUDGEMENT

(1.) THIS writ petition arises out of a suit for declaration and partition under Section 229 -B/176 of the U.P. Zamindari Abolition and Land Reforms Act (See Annexure I attached with the writ petition). The Plaintiff opposite party No. 3 in the present writ petition had filed the suit claiming 1/3rd share in the disputed land. The Defendants Petitioner had contested the claim of the Plaintiff opposite party. The suit was dismissed by the trial court on 3 -5 -1976. During the pendency of the First Appeal it appears that Jaggi died on 24 -9 -1976. An application for impleading the heirs of Jaggi was filed on 26 -7 -1977 which appears to have been rejected on 28 -9 -1977. The appeal was also abated on 28 -9 -1977 as is evident from Annexure IV attached with the writ petition. Thereafter the Plaintiff opposite party preferred a second appeal which has been allowed by the second appellate court through its order dated 29 -5 -1982. Aggrieved by the judgment of the second appellate court the Defendants Petitioners have approached this Court under Article 226 of the Constitution.

(2.) THE learned Counsel for the Defendants -Petitioners has contended before me that the second appellate court has patently erred in applying the amended provisions of Order 22 Rule 4 of the Code of Civil Procedure to the facts of the present case. According to him unamended provisions of the Code of Civil Procedure would apply to the facts and circumstances of the present case.

(3.) THE learned Counsel for the contesting opposite party has tried to support the impugned judgment of the second appellate court. He has also invited my attention to the provisions of Section 97(2)(r) and (3) of Act No. 104 of 1976 whereby the provisions of the Civil Procedure Code, 1908 have been amended. It has been contended on behalf of the opposite party that the order of abatement had not been passed in the appeal before the commencement of Act No. 104 of 1976, hence the Second Appellate Court was fully justified in passing the impugned order.