SUPAL MAJHI Vs. KUSHUN MAJHI AND OTHERS

JUDGEMENT

(1.) The present appeal arises out of the judgment passed by the learned Additional District Judge, Rairanpur in RFA No. 4 of 2004 setting aside an order of refusal of substitution of respondent Nos. 1 to 3 in place of original plaintiff and passing an order of abatement of suit as a consequence thereto.

(2.) The controversy concerns with substitution of the respondent No. 1 to 3 upon the death of the original plaintiff of Title Suit No. 68 of 1996 on the file of learned Civil Judge (Senior Division), Rairangpur. She had filed the suit against this appellant for declaration of a deed of adoption to be invalid in the eye of law with relief of declaration of right, title and interest in possession of the suit property. During pendency of suit the plaintiff died. The respondent Nos. 1 to 3 filed a petition for their substitution in place of original plaintiff being the legal heir of the last male owner of the suit properties that is the husband of the original plaintiff since the parties are members of Scheduled Tribe and the provisions of Hindu Succession Act, 1956 do not apply to them and the widow of the last male owner of the property was a limited owner on whose death the properties in her hands reverted back to the heirs of the last male owners as standing on the date of the death of the widow.

(3.) The Trial Court rejected the petition on the ground that the claim of the respondent Nos. 1 to 3 are not as much equal with the prayer in the plaint and observed that in case they are having any claim over the suit property, they may go for a separate suit but cannot pursue the present one. Accordingly, even without expiry of the period, the Trial Court passed an order of a abatement of the suit which is of course not the proper course as adopted. The Trial Court should have waited for the period as provided in law for substitution for any other to come forward with such a claim. However, in this appeal that is not the concern in view of challenge levied by the appellant.