ANJAN KUMAR DAS Vs. ARATI ASH

JUDGEMENT

(1.) This application has been preferred challenging the propriety of the order dated September 23, 2021 passed by the learned District Judge, Alipore, in Title Appeal No. 23 of 2020 whereby the Court below was pleased to dismiss the said Appeal, as being abated.

(2.) The background of this case is that one Bipin Bihari Das was the original tenant in respect of the suit property who died intestate sometime in the year 1972, leaving behind his wife Smt. Binapni Das and five sons and three daughters as his heirs and legal representatives. Said Binapani Das died sometimes in the year 1997. Thereafter opposite party no.1 filed Ejectment case no. 4 of 2005 against the heirs and legal representative of said original tenant Bipin Bihari Das and Binapani Das. Among the legal heirs, only Anadi Kumar Das, the predecessor-in-interest of the present petitioner, being the defendant no.1, contested the suit by filing written statement. The said Ejectment Suit being no. 4 of 2005 was decreed on contest against said Anadi Kumar Das, and exparte against the rest.

(3.) Being aggrieved by that judgment and decree passed in aforesaid ejectment case no. 04 of 2005, aforesaid Anadi preferred an appeal before District Judge, being T.A. No. 23 of 2020. During pendency of the appeal said Anadi also died intestate on 6/5/2021, leaving behind his sons namely the petitioner of the present application and one Soumitro as his legal heirs and representatives. Accordingly petitioner herein and Soumitro preferred an application under XXII rule 3 seeking substitution of their names in place of deceased Anadi. Learned Court below by the order impugned held that the right to sue does not survive and as such the appeal abated and thereby ordered that the appeal is dismissed being abated.