KALAWATI DEVI Vs. PREM SHANKAR SAH

JUDGEMENT

(1.) HEARD the counsel for the petitioners. No one appears for the opposite parties.

(2.) This application is directed against the order dated 6.12.2003 passed by the 3rd Additional District Judge, Bettiah in Misc. Appeal No. 52/2000 for setting aside the order dated 7.6.2000 passed by Munsif. Bettiah in T.S. No. 19 of 1995. Munsif, Bettiah by order dated 7.6.2000 has held that Title Suit No. 19/95 has abated on account of non -substitution of defendants no. 2, 6 and 13 within a period of limitation.

(3.) TITLE Suit No. 19 of 1995 was filed by Prem Shankar Sah against Ghuran Sah and others for a declaration that the execution sale in Execution Case No. 276 of 1955 is void. Defendant No. 1, Ghuran Sah, died on 7.2.2000. Defendant No. 2, Ram Chandra Sah, died on 19.7.1999. Defendant No. 6, Hafiz Mian, died on 23.6.1999 and defendant no. 13, Jado Lal Sah, died on 14.6.1999. The plaintiff filed two separate petitions on 11.4.2000 for substituting the legal heirs of Jadolal Sah and Abdul Hafiz. In the substitution petition it was stated that the plaintiff had no knowledge about the death of the defendants. He came to know about the death of defendants Jado Lal Sah after 5.8.2000 and filed substitution petition, as such the legal heirs, whose names have been mentioned in substitution petition should be substituted in place of Jado Lal Sah. So far as Abdul Afiz defendant no. 6 and Ram Chandra Sah defendant no. 13 is concerned they died on 23.6.1999 and 19.7.1999 respectively. Substitution petitions for substituting their legal heirs were filed well within time, but the same was wrongly filed in another Title Suit No. 254. of 1994, which is also being contested in between the same parties. The prayer of the plaintiff was that these substitution petitions be treated as filed in Title Suit No. 19 of 1995. on 30.8.99. The Title Suit No. 254 of 1994 had been filed for declaring the decree of Title Suit No. 137 of 1992 illegal and collusive. It was the prayer of the plaintiff that since the legal heirs of the deceased defendants have already been substituted in the main Title Suit No. 254/94 as such they should be treated as substituted in Title Suit No. 19/95.