LAWS(PAT)-1996-11-19

SAGAR KUER Vs. DAYANAND TIWARY

Decided On November 07, 1996
SAGAR KUER Appellant
V/S
DAYANAND TIWARY Respondents

JUDGEMENT

(1.) This is a plaintiffs' appeal against an order dated 3.1.1987, whereby, the 4th Additional Sub-ordinate Judge. Motihari, held that the suit stands abated in absence of the heirs of plaintiff No. 5.

(2.) The salient question, which emerges for consideration in this case would be when some of the heirs of the deceased plaintiff are already on the record and the rest of the heirs are not substituted, whether the proceeding becomes defective and abates or whether by application of the principle of representation by the heirs on record, the proceeding does not abate.

(3.) In order to answer the question, mentioned above, it would be essential to have a brief survey of the salient facts. The plaintiffs brought the instant suit for declaration of title and confirmation of possession or, in aiternative, recovery of possession with respect of the suit properties. On 1.9.1986 a petition was filed on behalf of the defendants that Gyaneshwar Tiwary (plaintiff No. 5) died on 5.7.1984 leaving behind his widow Shanti Devi as his legal heir. But the plaintiffs failed to substitute Shanti Devi within the prescribed period. Therefore, the suit stood abated.