SAHDEO SINGH Vs. RAMCHHABILA SINGH

JUDGEMENT

(1.) This application by the defendants is against an order, dated the 2ist July, 1977, passed by the court below, holding that the suit did not abate on account of the non-substitution of the heirs and legal representatives of the deceased plaintiff No. 5.

(2.) The plaintiffs, eleven in number, filed a suit for declaration of their title and confirmation of possession or, in the alternative, recovery of possession over the suit land. The plaintiffs have also prayed that the re visional survey records should be corrected. Their case, inter alia, is that the lands appertaining to Khasra No. 222, Khata No. 94, area 1 bigha, 12 kathas, 15 dhurs, situate in village Rampur Kumharkol, belonged to one Rakat Singh, plaintiffs' ancestor. It was re corded in the name of the said Rakat Singh in the cadestral survey. In the new revi-sional survey the land was re-numbered. Rakat Singh remained in possession of the land during his lifetime and after his death, his sons Kodai Singh and Julumdhari Singh came in joint possession. Kodai died leaving behind two sons, Shahi Narain Singh and Ram Bahadur Singh. The latter died issue-less. Shahi Narain Singh left behind two sons, Ramchhabila and Jalesar. Ramchhabila and his five sons are plaintiffs Nos. 1 and 6 to 10. The widow of Jalesar is plaintiff No. 2, Julumdhari Singh died leaving behind a son Nageshwar Singh. Nageshwar Singh left behind three sons, Akhileshwar Singh, Ashok Kumar Singh and Dilip Kumar Singh. Ashok Kumar Singh and Dilip Kumar Singh were made plaintiffs Nos. 4 and 5 and the widow of Akhilashwar Singh, Mt. Urmila Devi, was made plaintiff No. 3. It was alleged that the land in dispute belonged to all the plaintiffs and, because the cause of action was the same, the plaintiffs jointly filed the suit. The defendants belonged to different families who got a survey entry made illegally in their favour by bringing the Amin and others in collusion in respect of the plaintiffs, land to the extent of eight kathas. Hence the suit for declaration of title and confirmation of possession or, in the alternative, recovery of possession, and also for correction of the survey records.

(3.) One of the plaintiffs, Dilip Kumar Singh (plaintiff No. 5), died during the pendency of the suit. On the 27th June, 1977, the defendants filed an application stating, inter alia, that plaintiff Dilip Kumar Singh had left behind his mother as his heir and legal representative and since no application for substitution had been filed, the suit had abated and should be dismissed. The plaintiffs filed a rejoinder. According to them, Nageshwar Singh had two marriages. Akhileshwar Singh and Dilip Kumar Singh were born of the first marriage and Ashok Kumar Singh was born of the second marriage. The living wife of Nageshwar Singh is the mother of Ashok Kumar Singh. Since both, father and mother of Dilip Kumar Singh are dead, his step-brother Ashok Kumar Singh (plaintiff No. 4) was the legal heir and representative of Dilip Kumar Singh. Some evidence was led on this question by the parties. The learned Munsif recorded a finding that Nageshwar Singh had only one marriage and the widow of Nageshwar Singh is the own mother of Dilip Kumar Singh (plaintiff No. 5). However, he held that since the suit had been filed in a representative capacity by the Karta of different branches, it did not abate. It may be relevant here to state that in paragraph one of the plaint it is stated that plaintiffs Nos. 1, 2 and 3 are Kartas of their respective branches and were filing the suit in their representative capacity. It is the admitted position that no application for substitution was filed on behalf of the plaintiffs.