BHERO PRASAD Vs. STATE OF M P

JUDGEMENT

(1.) THIS second appeal has been preferred by appellant/plaintiff No. 2 impugning the judgment dated 14th January, 2000 rendered by 2nd Additional district Judge, Vidisha, in Civil Appeal No. 133-A/99, by which the learned judge has affirmed the order of the Trial Court dated 15-9-99 passed in C. S. No. 74-A/94 by Additional Civil Judge, Class I, Vidisha, wherein the learned Trial judge has dismissed the applications under Order 1 Rule 10, Order 22 Rule 3 of cpc and under Section 5 of the Limitation Act and in consequence it was concluded that suit has been abated.

(2.) THE brief facts, as revealed by both the judgments and agreed to by both the Counsel for the parties, are that appellant Bhero Prasad alongwith deceased Pannalal (co-plaintiff) filed one civil suit alleging therein that both the plaintiff were joint owners of the dispute land on the basis of a joint Patta, granted in favour of them, by the ex-ruler. When respondent Nos. 2 and 3 caused interference in the possession of the appellant and deceased co-plaintiff pannalal, copy of the revenue record was obtained and then the appellant came to know on 24-8-82 that the names of the appellant and Pannalal were deleted from the revenue record, hence, the suit for declaration of title and injunction was filed. These facts were countered by the respondent Nos. 2 and 3 in their written statements in which it was mentioned that the disputed land is of government land of which a Patta has been granted by the Government in favour of the respondent Nos. 2 and 3. During the pendency of the suit, appellant filed an application under Order 1 Rule 10 (2) of CPC on 3rd of december, 1998 mentioning therein that co-plaintiff Pannalal has died without any other heirs and the appellant is the sole heir, he being on record, the name of Pannalal is ordered to be deleted. In reply, on behalf of respondent Nos. 2 and 3 it was mentioned that Pannalal had died leaving one son and five daughters. Thereafter, the appellant filed two more applications on 11-5-99; one, under Order 22 Rule 3 of CPC an another, under Section 5 of the limitation Act. In the applications, it has been mentioned that co-plaintiff pannalal had left the village for the last 7-8 years, now he is dead, his L. Rs. be taken on record and vide reply filed by respondent Nos. 2 and 3 of the application under Order 1 Rule 10 as above, he came to know that Pannalal has died leaving some L. Rs. behind him, hence, the delay is required to be condoned. Both the applications were supported by the affidavit of the appellant. Both these applications were opposed by the respondents No. 2 and 3 by filing reply dated 22- 7-99 on the ground that deceased Pannalal has died before two years and this fact was in the notice of the appellant. In view of this, the suit has been abated.

(3.) VIDE order dated 15th September, 1999 the learned Trial Judge dismissed the applications filed on behalf of the appellant on the ground that malafidely he informed the Court that Pannalal has died without any heirs, he was knowing the fact of his death since very beginning, the application has not been filed on behalf of the legal representatives of deceased Pannalal, the suit has been filed on the basis of the joint ownership, and as the legal representatives of one of the plaintiffs have not been brought on record in time, the suit has been abated. This order has been affirmed by First Appellate Court vide its impugned judgment dated 14-1-2000 as mentioned in Para No. 1.