MOHAMMAD ISHA Vs. GULAB PRASAD

JUDGEMENT

(1.) THE defendant appellant has filed this Misc. Appeal against the order dated 24 -5 -1993 passed by the Additional District Judge VI, Siwan, in Title Appeal No. 57 of 1989, whereby the learned Additional District Judge has held that the appeal has abated as a whole and accordingly, he has dismissed the appeal. The plaintiffs, who are respondents in this Misc. Appeal had filed Title Suit No 199 of 1982. The learned Additional Munsif had decreed the suit and directed the defendant to take Rs. 1,500.00 from the plaintiffs within three months from the date of the order and to reconvey the disputed suit land to the plaintiffs. The defendant had preferred Title Appeal No. 57 of 1989 against the judgment and decree passed by the learned Additional Munsif, in the Court of District Judge, Siwan.

(2.) ACCORDING to the defendant -appellant, in Title Appeal No. 57 of 1989. notices were issued and the registered cover issued to opposite Party No. 2, Smt. Indu Devi was returned with an endorsement that she had died and on 28 -8 -1991 direction was given by the lower Appellate Court to the appellant to take proper action in the matter. On 1 -8 -1992, the Title Appeal was dismissed for default by the learned Additional District Judge and the appellant had filed Miso. Case No. 4 of 1992 for its restoration. In the Misc. case, an application was filed by the opposite parties on 21. -11 -1992 that Smt. Indu Devi had died on 15 -7 -1991 leaving behind a daughter, Guddi and husband, Harendra Hajra, who were not substituted in the case and the appeal had abated.

(3.) IT was argued by the learned lawyer for the appellant that on 15. -2 -1993, a petitioner was filed by the appellant in Title Appeal "No. 57. of 1989 for directing the respondent Gulab Prasad to furnish the names of the Police Station and Post Office of village Damodar. It has been stated in the petition dated 15 -2 -1993 filed on behalf of the appellant in Title Appeal No. 57 of 1989 that during hearing of the Misc. Case respondents disclosed on 21 -11 -1992 that respondent, Smt. Indu Devi had died on 15 -7 -1991 leaving behind her husband and a daughter. According to the petition, the appellant tried to trace out the village Damodarpur but he could not trace out the village Damodarpur due to lack of full address. A rejoinder of the petition was filed on behalf of the respondents stating therein that during pendency of the suit, Indu Devi was married to Harendra Hajra of village Damodarpur, who was blessed with a daughter named Guddi. Thereafter, respondents filed a petition on 2. -4 -1993 to declare the appeal abated as a whole. A rejoineder was filed on behalf of the appellant on 30 -4 -1993 stating therein that Indu Devi did not die on 15 -7 -1991 and her whereabouts is not known to the appellant.