SHERO 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 -N99 by which the learned Judge has affirmed the order of the trial Court dated 15.9.1999 passed in CS No.74 -N94 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, asrevealed by both the judgments and agreed to by both the learned counsel for the parties, are that appellant Bhero Prasad alongwith deceased Panna1a1 (co -plaintiff) filed one civil suit alleging therein that both the plaintiffs were joint owners of the disputed land on the basis of a joint Patta, granted in favour of them, by the ex -ruler. When respondents No.2 and 3 caused interference in the possession of the appellant and deceased co -plaintiff Panna1a1, copy of the revenue record was obtained and then the appellant came to know on 24.8.1982 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 respondents No.2 and 3 in their written statements in which it was mentioned that the disputed land is Government land of which a Patta has been granted by the Government in favour of the respondents No.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 be ordered to be deleted. In reply, on behalf of respondents No.2 and 3 it was mentioned that Pannalal has died leaving one son and five daughters. Thereafter, the appellant filed two more applications on 11.5.1999; one, under Order 22 rule 3 of CPC and 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 LRs be taken on record and vide reply filed by respondents No.2 and 3 of the application under Order 1 rure 10 as above, he came to know that Panna1al has died leaving some LRs 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 22.7.1999 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 4.3.2003 this appeal was admitted for final hearing on the following three substantial questions of law: