NANDLAL PANDEY Vs. BISHWANATH PANDEY

JUDGEMENT

(1.) This revision application is directed against the order dated 17.12.1997 passed by the 3rd Additional District Judge, Gopalganj in M.A. No. 21 of 1996 dismissing the appeal preferred against the order of the Subordinate Judge III, Gopalganj dated 24.9.1996 rejecting the application filed by the petitioners for substitution of the heirs of original plaintiff no. 1 and defendant no. 1. 3. Admitted fact is that the suit in question is a suit for partition. Plaintiff no. 1 died on 23.2.1995. His two sons are already on record. Defendant No. 1 died on 31.12.1994 and his two sons are already on record as defendants no. 2 and 3. The plaintiff did not take any step for bringing other sons of the original plaintiff on record within time and accordingly, the defendants filed a petition on 24.12.1995 bringing to the notice of the court that the remaining heirs have not been brought on record and accordingly the suit has abated. Thereafter the plaintiff took steps and filed a petition on 2,9.1996 for substitution of legal heirs and representatives of the aforesaid two deceased and also made prayer for setting aside abatement and as the substitution petition was filed after expiry of the period of limitation, a limitation petition was also filed to condone the delay in filing the application for setting aside abatement.

(2.) Both the courts below have rejected the prayer of the petitioners, who are remaining plaintiffs on the ground that there was delay in filing the petition and the explanation given by the plaintiff was not satisfactory.

(3.) In my view, both the courts below have not appreciated the point involved in the suit. The present suit is a suit for partition. Plaintiff no. 1 and defendant no. 1 died leaving behind other legal heirs on the record. In other words, even after the death of the plaintiff no. 1 and defendant no. 1, right to sue survived to the remaining parties who were already on the record. In such a situation, there is no question of abatement and the only requirement in law is that if the deceased had other heirs, the parties should bring them on record by filing petition. The courts below have not considered the matter from this point and proceeded wrongly on the presumption that the suit has abated ignoring the fact that other heirs were already on record. However, the plaintiffs petitioners also cannot be excused from the blame that instead of filing petition bringing other heirs on record, they themselves invited decision to the question as to whether the suit has abated or not.