MADHUSUDAN SINGH Vs. GITA DEVI

JUDGEMENT

(1.) Appellant/Intervenor/defendant 2nd Party, (since deceased) being aggrieved by and dissatisfied with the judgment dated 10.04.1978, preliminary decree dated 24.04.1978 passed by the Subordinate Judge, East Champaran, Motihari in Partition Suit No. 250/1976 decreeing the suit in part on contest with cost against the contesting defendant and without cost against the rest identifying the 1/4th share of the plaintiff in the property so detailed under schedule by way of acknowledging her right directing to get her share separated, properly demarcated through a pleader-commissioner on depositing due remuneration, filed this appeal.

(2.) It is further to be taken note of the fact that original appellant Banarsi Kuer @ Maya Devi died on 25.09.1989 and as per admission of Banarsi Kuer @ Maya Devi, she was second wife of father of Gita Devi, (plaintiff/Respondent No.1), hence she (Gita Devi, plaintiff/Respondent No.1) would have been her legal heir, who could have inherit her, but as is evident Respondent No.6, (one of the sons of uncle of Gita Devi, plaintiff/respondent) filed petition under Order-I Rule 10 on the pretext that some lands have already been sold in their favour by the aforesaid Banarsi Kuer, hence he be substituted in a way to protect their right as Banarsi Kuer left for heavenly abode leaving no legal heir which vide order dated 22.04.2015 has been allowed without condoning the delay as well as recalling the abatement. Contrary to Order XXII Rule 4(5) of the CPC on the premises that it happens to be partition suit.

(3.) For better appreciation, the parties are being identified by their original status, henceforth.