SUKKAR MAHTO Vs. MD NIZAMUDDIN

JUDGEMENT

(1.) This Revision petition has been preferred by the above named plaintiff-petitioner against the order dated 12.3.1991 passed by 3rd Additional District Judge, Hazaribagh in Misc. Appeal No. 12 of 1988. whereby and where under the order of abatement passed in Partition Suit No. 131 of 1989 on 6.2.1988 by the 5th Sub Judge, Hazaribagh has been confirmed for non substitution of the heirs of deceased defendant No. 1, Meghan Mian.

(2.) The Partition Suit was filed by the plaintiff wherein Meghan Mian along with others have been made defendants in the suit. Meghan Mian's eldest son was also a defendant originally in the suit being a co-sharer in the suit property. After the evidence was closed and the case was pending for argument, then on 19.11.1986 defendant No. 2 filed a petition before the court of Sub Judge, to the effect that defendant No. 1 Meghan Mian died on 31.8.1986, but it appears that such information was supplied in a petition for adjournment and no separate petition was filed and no copy was served on the basis of that petition, the learned Sub Judge was on the impression of a simple petition for adjournment did not mention anything about the death of defendant No. 1, Meghan Mian. Then on 16.1.1987, the defendant No. 2 again filed a petition reiterating the facts stated on 19.11.1986 regarding the death of defendant No. 1 and orders were passed for substituting the heirs of defendant No. 1. but then also no substitution petition was filed from the side of the plaintiff. Again on 12.3.1987 the defendant No. 2 filed petition praying that the suit being abated against the defendant No. 1 and the suit being a Partition Suit, it had abated as whole. On that very date at about 3.15 p.m., the plaintiff filed a petition for substitution of the heirs of defendant No. 1, Meghan Mian and for setting aside the abatement order. The plaintiff contended that the defendant No. 1 died in the month of November, 1986 and not in the month of August, 1986 as stated by the defendant No. 2.

(3.) After hearing both the parties, the learned Sub Judge held that the suit had already been abated as the heirs of defendant No. l had not been brought on record in time and no petition for setting aside abatement, with condonation petition was filed. Against that abatement order, the plaintiff filed Misc. Appeal, as mentioned above, but the appellate court also confirmed the abatement order.