JIBA DEVI Vs. SATYA NAND ROY

JUDGEMENT

(1.) This appeal has been referred to a Division Bench by Hon'ble Mr. Justice S. Ali Ahmad, who is now a member of the present Division Bench hearing the appeal. The plaintiffs have filed this Second Appeal against the judgments of the courts below.

(2.) On perusal of the original order, dated 31-1-1969 passed by the Munsif, it appears that the same was passed on a petition framed and preferred under Order 22, Rule 9 (2) of the Civil P. C. (hereinafter referred to as 'the Code') for setting aside the abatement of the main suit. The said suit was for a declaration of title and recovery of possession of some land on the ground that the plaintiffs were dispossessed by the defendants and that the defendants were all members of one joint Hindu family.

(3.) The trial court took a view that the plaintiffs have failed to establish sufficient cause and has also held that in view of the plaintiffs' case the suit had abated as a whole and not only against the deceased defendants. An appeal in the court below was preferred as against the order, dated 31-1-1969 and also against the decree dated 19-2-1969, which followed as a consequence to the dismissal of the suit ordered by the original court while disposing of the petition for setting aside the abatement. In effect, therefore, the appeal before the court below was a composite one, i. e. both against the order refusing to set aside the abatement as also dismissal of the suit.