SUNA MAJHI Vs. BHAIRAB PRASAD BEHERA

JUDGEMENT

(1.) One of the two plaintiffs has preferred this appeal. The other plaintiff (plaintiff No. 1) Majhia Majhi, died during the pendency of Title Appeal No. 61/71 filed by the defendant in the lower appellate court. It is not necessary for me in this appeal to state in detail the respective cases put forward by the plaintiffs and the defendant. Suffice it to say that the plaintiffs' suit was for declaration of title to and recovery of possession of the suit land on the averments that the plaintiffs are the owners of the suit land and while they were in possession of the same the defendant forcibly dispossessed them from the same in Jestha, 1969. The defendant claims the suit land on the allegation that he has been in long possession of the same and that the plaintiffs do not have any right, title and interest therein.

(2.) The trial court declared that the plaintiffs had right, title and interest over the suit land, and that they were entitled to recover possession of the same through court. Against the said decision the defendant filed Title Appeal No. 61/71 in the lower appellate court. When the said appeal was pending the Advocate for the plaintiffs-respondents in the said appeal, filed a memo in the said court stating therein that plaintiff No. 1 Majhia Majhi, respondent No. 1 in the said appeal, died on 20-7-72 leaving his widow Jili Dei and his minor son Banamali Majhi, the heirs and legal representatives of the said deceased plaintiff; and that as the defendant-appellant had not taken any steps to substitute the said legal representatives of the deceased plaintiff within the prescribed time the appeal abated in its entirety. The Advocate for the appellant filed a memo stating therein that plaintiff No. 2 was the only heir and successor of the deceased plaintiff-respondent No. 1, and he being already on record it was not necessary for the appellant to substitute the legal representatives of deceased Majhia Majhi. The appellate court on its own appreciation of the matter held that the appeal did not abate, and by its order dated 15-12-73 it directed that the name of the deceased plaintiff No. 1, respondent No. 1, in that appeal, be deleted from the record. Accordingly, the name of the deceased plaintiff was deleted. On the same day the court allowed the appeal on merits and set aside the judgment and decree of the trial court, thereby dismissing the suit in its entirety. Hence this appeal by plaintiff No. 2 only.

(3.) It is contended by Mr. S. Miara-2, learned counsel for the appellant, that the decree of the court below is a nullity in law as the appeal in that court had abated in its entirety because of the fact that the legal representatives of the deceased plaintiff No. 1 Majhia Majhi, who died on 20-7-72 during the pendency of that appeal in the lower appellate court, had not been brought on record. In this court one Jili Dei has filed an affidavit on 13-8-74 stating that plaintiff No. 1 (Majhia Majhi), respondent No. 1 in Title Appeal No. 61/71 in the lower appellate court, was her husband and the father of Banamali Majhi, who is minor child of about 5 years old and is living under the care and custody of the deponent. In paragraph 2 of the said affidavit it is stated that the said Majhia Majhi died on 20-7-72 leaving behind him his wife, Jili Dei, and his son Banamali Majhi as his legal heirs, and they have not been substituted in the lower appellate court. A copy of this affidavit was served on 8-5-77 on the Advocate appearing for the defendant-respondent. The respondent was granted time to file counter to the said affidavit, if any, by 20-6-77, but no counter to that affidavit has been filed till now. On 20-6-77 Mr. Mohanty, the learned counsel for the respondent, filed a memo in this Court stating that the lawyer who appeared in the court below for the respondent informed Mr. Mohanty that the defendant was lying ill since a month prior to the filing of the said memo and was not in a position to understand and state anything, and so Mr. Mohanty could not get any instructions from his client to file a counter to the aforesaid affidavit filed by Jili Dei. Stating all that it is mentioned in the said memo that "the matter may be disposed of in the usual course". The statements in the said memo are not supported by any affidavit. Even if the respondent's illness, as stated in the said memo, was correct, it would not have been difficult to file an affidavit of some other person to controvert the facts asserted in Jili Dei's affidavit if the facts stated therein were incorrect. The facts asserted in Jili Dei's affidavit get corroboration from the facts stated in the memo filed on behalf of the plaintiffs in the court below, and those facts stand unassailed.