BISHUNDEO RAI Vs. CHANDRAWATI KUER

JUDGEMENT

(1.) A preliminary objection has been taken up in this appeal on behalf of plaintiffs-appellants who were respondents in the court of appeal below that respondent No. 3 Bahuria Indrajot Kuer having died during the pendency of the title appeal leaving behind a daughter Malti Devi as well, besides her two sons already on the record, in the absence of any step for substitution having been taken by the appellants in the court of appeal below the whole title appeal had abated and, therefore, it could not have proceeded to a judgment.

(2.) Mr. S. C. Mukherji, appearing for the respondents, however, contends that, there is no question of abatement in this case. He further contends that in view of the feet that two of the heirs of the deceased, respondent Bahuria being already on the record of the case her estate was fully represented under the title appeal and, therefore, there was no question of any abatement of the title appeal.

(3.) In order to appreciate and decide this question it is necessary to discuss the matter in a little detail. The suit was instituted by the two sons of one Ghughli Rai and his widow, namely, Bahuria Indrajot Kuer, for declaration of title and possession with respect of 31/2 dhurs of land from the eastern side of Survey Plot No. 644 appertaining to khata No. 140 of village Barhara in the district of Saran on the assertion that Ghughli Rai purchased the said Khata in the court auction sale against the recorded tenant of the khata and after taking delivery of possession has been coming in its possession including the suit land and after his death the plaintiffs being his heirs came in actual physical possession thereof. Contiguous east of this plot is Survey Plot No. 641. It was asserted that on the 15th day of Asadh, 1368 Fs. the defendants broke the eastern ridge of plot No. 644 in the absence of the plaintiffs and amalgamated the suit land with their own land, namely, Plot No. 641.