AMITESHWAR DAYAL Vs. SHAMBHU DAYAL

JUDGEMENT

(1.) Both the First Appeals are heard together because the result of First Appeal No.1206 of 1971 is dependent on the result of First Appeal No.65 of 1967. The First Appeal No.65 of 1967 was filed by the original plaintiff, Tarkeshwar Dayal against the judgment and decree dated 19.01.1967 passed by Sri Harishanker Prasad Choudhary, Additional Subordinate Judge 2 nd Court, Patna in Title Suit No.58 of 1954/20 of 1965 whereby the learned court below dismissed the plaintiff s suit for declaration that the decree dated 13.02.1950 passed in Title Suit No.8 of 1950 is null and void and not binding on the plaintiff and for partition of half share in the joint family properties. During the pendency of the appeal, the original plaintiff-appellant, Tarkeshwar Dayal died and has been substituted by his legal representatives.

(2.) The said plaintiff-appellant had filed First Appeal No.1206 of 1971 against the judgment and decree dated 16.07.1971 passed by Sri Dipti Prasad Mukherjee, 2 nd Additional Subordinate Judge, Patna in Title Suit No.115 of 1963/43 of 1970 whereby the learned court below dismissed the plaintiff s suit for pre-emption and in the alternative, for specific performance of contract.

(3.) During the course of argument, it is submitted by the learned counsels appearing on behalf of both the parties that if it is held that there had been no partition between the original plaintiff and original defendant no.1, then only the question of pre-emption will arise and, therefore, the result of this first suit is dependent on the result of the second suit giving rise to First Appeal No.1206 of 1971. In such circumstances, both the appeals are heard together and are being disposed of by this common judgment with the consent of the parties. The original defendant no.1, Chandeshwar Dayal also died during the pendency of the appeal and has been substituted by his legal representatives.