JHATA MALLIK Vs. TINKADI CHAND MANDAL

JUDGEMENT

(1.) Some defendants in a pending suit for declaration of title and recovery of possession with other ancillary reliefs have filed this revision under S. 115 of the Code of Civil Procedure being aggrieved by the order of the learned Subordinate Judge, Baripada, rejecting their application that the suit has abated on the ground that defendant no. 1, a joint tortfeasor, having died, his legal representatives have not been substituted.

(2.) Plaintiff filed Title Suit No. 88 of 1970 in the court of the Subordinate Judge at Baripada on 20th of Oct. 1970, asking for a declaration of title, recovery of possession, grant of permanent injunction and recovery of mesne profits. He alleged that the defendants jointly in a gang disturbed plaintiff's peaceful possession and forcibly cut away the paddy in Dec. 1967, though the same had been grown by the plaintiff. In 1968 defendants with their supporters in a body forcibly dispossessed the plaintiff from the disputed land and have remained in possession as a result of which the plaintiff is not able to grow crops in his land.

(3.) On plaintiff's own allegations there is no scope to dispute defendant's contention that the defendants were described as joint tortfeasors. The legal position is well settled as far as this court is concerned that abatement of a suit against one joint tortfeasor brings about a total abatement of the suit. Defendant no. 1 died on 4-3-1972, leaving behind legal representatives. Plaintiff, however, did not ask for substitution as required by law. Defendants-petitioners thereupon applied to the trial court for an order that the entire suit had abated. The learned Subordinate Judge came to find that the plaintiff and the defendant no. 1 had filed a petition of compromise on 1-2-1971, and, therefore, defendant no. 1's death and non-substitution of his legal representatives would not bring about any abatement, so far as the suit is concerned.