MADHO SINGH Vs. RAGHU NANDAN PRASAD

JUDGEMENT

(1.) I .A. No. 5775 of 2007 has been filed on behalf of the appellants on 9.10.2007 for substituting the heirs of appellant no. 1. I.A. No. 5776 of 2007 has been filed by the appellants for condoning the delay in the filing of the said application for substitution, whereas I.A. No. 6085 of 2007 has been filed on behalf of the appellants for setting aside abatement. It is stated that appellant no. 1 Madho Singh died on 10.7.2007 leaving behind two sons, namely Shiv Pujan Singh and Satendra Singh, residents of the same village, as his heirs and legal representatives. From the averments made by the learned counsel for the appellants and from the statements made in the interlocutory applications, it appears that genuine reasons have been shown due to which the appellants could not file the aforesaid applications earlier. In the said circumstances, all the three interlocutory applications are allowed, delay in the filing of the application for substitution is condoned and abatement is set aside. Let the heirs of appellant no. 1 mentioned above be substituted in his place.

(2.) HEARD learned counsel for the appellants and learned counsel for the respondents. This second appeal has been filed by defendant 3rd Set against the judgment of reversal. Title Suit No. 29 of 1982 was filed by the plaintiffs -respondents no. 1 to 4 for partition of the suit land claiming that the parties to the suit, namely the plaintiffs and defendant 1st Set belonged to the same family having common ancestor and properties were joint. Defendant 2nd Set were purchasers from defendant 1st Set, whereas the instant appellants were also purchasers from one Sheo Nandan Prasad (one of defendants 1st Set) by registered deed dated 22.6.1989 and they were also impleaded as defendant 3rd set in the title suit. However in the said suit, although notices were served on the defendants, some of them appeared and filed their written statement, but thereafter they did not contest the suit and the case was posted for ex parte hearing. Thereafter, learned IVth Subordinate Judge, Chapra, dismissed the suit by judgment dated 29.6.1962. Against the aforesaid judgment and decree of the trial court, the plaintiffs filed Title Appeal No. 81 of 1992 and finally the said title appeal was allowed by the learned Addl. District Judge, 1st, Saran by judgment and decree dated 16.8.2002 and the claim of the plaintiffs in the title suit was decreed. Against the said judgment and decree of the lower appellate court only defendant 3rd Set mentioned above who were the purchasers from one of the defendant 1st Set during the pendency of the title suit filed the instant second appeal, whereas the other defendants did not challenge the said judgment and decree.

(3.) LEARNED counsel for the appellants has raised two questions claiming them to be the substantial questions of law, out of which, the first was that in the title suit and in the title appeal filed by the plaintiffs no notice was given to the appellants in the second appeal, who were defendants and respondents in the learned court, below, due to which the judgment and decree of the appellate court is vitiated in law. The second question is that plaintiffs had failed to show that the joint family nucleus had sufficient fund for purchase of the suit properties and hence onus was wrongly placed upon the defendants to prove that the suit properties were joint family properties.