PARSURAM RAI Vs. DILJAN MIAN

JUDGEMENT

(1.) This application is directed against an order of the first Additional subordinate Judge of Arrah setting aside the Judgment and decree of the trial Court and remanding the suit for disposal according to law.

(2.) The petitioners were defendants along with one Ramkhelawan Pandey and opposite party 2 to 4. Opposite party No. 1 was plaintiff in the suit which was for a declaration that certain plots of land measuring 2.94 acres constituted the ancestral land of the plaintiff. The plaintiff sought for confirmation of possession over the suit land and prayed for a permanent injunction restraining the defendants from interfering with their possession over the same. The suit was dismissed by the learned Munsif, Buxar, on the 30th August 1961. Then, the plaintiff preferred an appeal. Sometime in the beginning of 1962 the process-server, who had gone to serve notice of the appeal on the respondents, reported that respondent No. 3, that is, Ram Khelawan Pandey was dead. By order No. 8 dated the 28th February 1962 the learned District Judge of Shahabad directed the appellants to take steps with regard to respondent No. 3 by the 6th March 1962. On that date the plaintiff-appellant. Diljan Mian, filed a petition that the name of Ram Khelawan Pandey should be expunged from the memorandum of appeal as it was learnt from enquiry that he was dead. The date of death was not disclosed in this petition nor any request made for time to make enquiries regarding his heirs. After the service of notice, the other respondents appeared in the appeal on the 7th April 1962 and some of them filed a petition that Ram Khelawan Pandey died on the 25th January 1962 at village Mahuarpatti Bahudri, and that Diljan Mian had knowledge of his death immediately, he being a close neighbour of Ram Khelawan pendey. It was further stated in that petition that, inasmuch as no petition for substitution of the heirs or legal representatives of Ram Khelawan Pandey had been filed, the whole suit abated. No rejoinder was filed by Diljan Mian to this petition.

(3.) It was admitted before the first appellate Court that Ram Khelawan Pandey died on the 25th January 1962, that is, before the hearing of the title suit commenced, but Relying on the decision of a Bench of this Court in Ram Saran Ahir v. Prithvi Nath Singh, AIR 1952 Pat 267 the Court below held that the abatement matter could be decided only by the trial Court, and, therefore, the appeal was allowed and the case was remanded to the trial Court.