FAKIRCHAND Vs. RAMCHANDRA S/O LATE NATHAJI NAI

JUDGEMENT

(1.) The petitioners before this Court have filed the present petition under Article 227 of the Constitution of India being anguished by the order dtd. 30/6/2017 passed by the Ist Additional District Judge, Ratlam, whereby Miscellaneous Appeal No.01/2015 filed under Order XLIII Rule 1(k) of the Code of Civil Procedure, 1908 has been dismissed and judgment and decree passed by the Ist Civil Judge, Class - I, Ratlam in Civil Suit No.114-A/1994 has been affirmed.

(2.) Draped in brevity, the relevant facts are that predecessor of present petitioners Shankarlal filed a civil suit for partition joint family property and the agricultural land bearing Khata No.358, Survey Nos.191, 464 and 466 admeasuring 7.320 hectare against his brother Ramchandra, mother Smt. Nathi Bai and another pre-deceased brother Dhuraji through his legal heirs on 5/10/1982.

(3.) During the pendency of the civil suit and after a lapse of ten years, Shankarlal (original plaintiff) died on 19/12/1992. It is an admitted position that Shankarlal was unmarried and died issueless. He was being looked after by his nephew Fakirchand. During the life time, Shankarlal executed a Will in favour of Fakirchand on 5/3/1994. By the said will, the original plaintiff bequeathed all his properties including the land in question to Fakirchand. Therefore, on the basis of said bequest, an application under Order XXII Rules 3 & 9 of the CPC along with an application under Sec. 5 of the Limitation Act for substitution of name of the petitioners' ancestor Fakirchand in place of original plaintiff was filed on 7/5/1993. An application under Order XXII Rule 10 was also filed on the same day.