SHEO KUNDAL CHAUDHARY Vs. LALDEO CHAUDHARY

JUDGEMENT

(1.) THIS appeal is directed against the order dated 17.12.2004 passed by the learned 4th Additional District Judge, Siwan in Title Appeal No.78/1993 by which it has been held that the whole appeal has abated due to non -substitution of heirs of appellant no.4 Padum Chaudhary.

(2.) THE plaintiff -respondent no.1 had instituted Title Suit No.155/89 in the court of Sub -Judge, Siwan for declaration of title and confirmation of possession over the land bearing Plot No.3924 of Khata No.491, Area 1 Bigha of village -Sarsar.

(3.) THE learned counsel for the appellants has submitted that the learned court below has failed to consider that the application for setting aside the abatement has resulted in failure of justice. The High Court set aside the entire order passed in Title Appeal No.78/1993. Therefore, the court below should have considered the point whether there was sufficient cause for setting aside the abatement. In the previous order, the High Court has only made observation regarding the substitution of the heirs of appellant no.4 Padum Chaudhary. But in the order portion, the entire order has been set aside. There was a partition and one co -sharer cannot transfer coparcenaries property and as such, the plaintiffs have not acquired any title.