PARHLAD JHA Vs. SONELAL MAHTON

JUDGEMENT

(1.) These two appeals have been preferred by the plaintiffs. The Miscellaneous Appeal is directed against the order of the lower appellate court dismissing the plaintiffs' (who were also appellants in the lower appellate court) application for setting aside abatement and substitution of the heirs and legal representatives of one Satahu Mahto, who was minor respondent No. 5 before that court. The second appeal is directed against the judgment and decree holding, in pursuance of the above mentioned order of rejection of the application for setting aside abatement, that the entire appeal before the lower appellate court had become incompetent and, accordingly, the plaintiffs' appeal before that court was dismissed.

(2.) Shortly stated the facts giving rise to these appeals are these. The appellants had instituted Title Suit No. 92 of 1953 for a declaration of title and recovery of possession against a number of defendants including the aforesaid Satahu Mahto, who was the minor defendant No. 5 in the suit, his father, Sonelal Mahto having been impleaded as defendant No. 1 in the suit. The suit was based on allegation, inter alia, that the plaintiffs-appellants were the rightful owners having right, title and interest to 1 B. 13 K. and 13 dhurs of land of khata No. 200 bearing survey plot Nos. 366 to 369 and 1203 and 1204 situate in village Gobindpur Bela. The defendants were alleged to be trespassers who, according to the plaintiffs' case, had dispossessed them giving rise to a cause of action for instituting the suit. The trial court dismissed the plaintiff-appellants' suit on the findings, inter alia, (i) that the plaintiffs had no right, title and interest over the disputed land, (ii) that the defendants had been coming in possession over the disputed land as of right and openly for much more than 12 years acquiring title by adverse possession and (iii) that the plaintiffs' story of possession and dispossession as alleged was not correct and the suit was barred by limitation. Against this decree of the trial court, the plaintiffs preferred an appeal before the lower appellate court which, however, was dismissed by a judgment and decree dated the 31st of January, 1959. The appellants thereafter preferred Second Appeal No. 554 of 1959 in this Court. During the pendency of the aforesaid second appeal, it transpired that one of the defendants-respondents namely, Satahu Mahto, minor respondent No. 5 son of Sonelal Mahto, respondent No. 1 had died on 3-10-1958 during the pendency of the appeal before the lower appellate court. The matter came up on the Lawazima Board before the learned Registrar on 1-8-1960 at the instance of the appellants merely for noting of the fact that the aforesaid Satahu Mahto was dead and that his heirs were already on record. On 9-12-1960, however, the respondents filed an application before this Court supported by an affidavit that the respondent No. 5 aforesaid had died leaving behind his mother, Musammat Daulat Kuar, who had not been brought on the record by the appellants within the period of limitation although the appellants knew of the existence of the mother of the deceased respondent No. 5. The appellants, thereafter on 14-3-1971 filed a counter-affidavit in this Court stating that they had learnt about the death of the aforesaid Satahu Mahto on 25-7-1960 and that at that time the appellants did not know of the existence of the mother of the deceased respondent No. 5. An application was, accordingly filed for setting aside abatement before this Court. At the final hearing of the aforesaid second appeal, this Court remanded the case to the lower appellate court, after setting aside its judgment and decree, for disposing of the appeal after passing appropriate orders on the application for setting aside the abatement of the appeal in the court below. It is on such a remand that the present judgment and decree dated the 31st of July, 1963, has been passed by the lower appellate court whereby the application for setting aside the abatement filed on behalf of the appellants was rejected and entire appeal was held to be incompetent and as already stated it is against this order and decree that these two appeals have been preferred.

(3.) Before adverting to the points raised by learned counsel appearing on behalf of the appellants I think it worthwhile to shortly give the findings of the lower appellate court in the matter of abatement. The learned Additional Subordinate Judge has held that the appellants have failed miserably to make out sufficient cause for setting aside the abatement. He further recorded a finding that it could not be accepted that the appellants were ignorant of the death of Satahu Mahto before the date of knowledge alleged by them. It was further held that the appellants had also the knowledge that the deceased Satahu Mahto had died leaving behind as one of his heirs his own mother, Musammat Daulat Kuar. On these findings, the application for setting aside abatement under Order 22, Rule 9 of the Civil P. C. (hereinafter to be referred to as the 'Code') was rejected and it was further held that since the decree of the trial court was a joint and indivisible decree the entire appeal as against the other respondents had also become incompetent.