LUTU URAON Vs. BALU URAON

JUDGEMENT

(1.) THIS appeal is directed against the order dated 22.6.81 and decree signed on 1.7.81 by reason of which the Title Appeal No. 179/1 of 1976/78 was dismissed as abated as a whole by the learned Sub -Judge, Gumla.

(2.) THE plaintiffs -appellants filed the title suit No. 321/69 for declaration that the final decree dated 8.5.67 passed in partition suit No. 47/69 is null and void so far as the plaintiffs are concerned. The plaintiffs were Lutu Oraon, Repa Oraon, Bandhana Oraon, sons of late Birsai Oraon, Budhua Oraon, minor son of Birsai Oraon through his -mother, natural guardian plaintiff No. 3, Mostt. Gumi Oraon whereas defendants were Balu Oraon Gahanu Oraon sons of late Mangu Oraon, Narwa Oraon, Wala Oraon, Budhu Oraon, sons of late Rama Oraon, minors through their mother, natural guardian Mostt. Ghasni, Deoir Oraon, Gandur Oraon sons of late Jitia Uraon, Bandhana Oraon, Bhairo Oraon, Natwa Oraon, sons of late Sukra Uraon and Most. Sanjhia widow of late Sukra Uraon. On contest the suit was dismissed with cost. The plaintiffs/appellants carried the matter in appeal before the First Appellate Court. During pendency of the appeal a petition dated 21.7.79 was filed by the respondents under Order XXII, Rule 4, C.P.C. praying therein to dismiss the appeal as abated on the ground that the defendant -Respondent No. 1 Balu and his heirs were not substituted within the statutory period. From the order -sheet of the Court of appeal below, it appears that prayer for filing of rejoinder was also made on behalf of the appellants and the matter was not finally disposed of till the impugned order was passed on 22.6.81. It was the stand of the appellants before the Court below that Balu died not on 7.5.78 but on 12.5.79 and to resolve this controversy, oral evidence was adduced before the Court. Having appreciated the evidence on record, the learned lower appellate Court has come to a finding that the respondents were able to prove the factum of death of Balu as well as the date of his death. On the other hand, it was found that the appellants miserably failed to prove that Balu died on 12.5.79 and not on 7.5.78 as asserted by the respondents. From the impugned order, it appears that the lower appellate Court has taken care to scrutinise the evidences of the parties carefully and has come to a definite conclusion that Balu died on 7.5.78 and not on 12.5.79. Moreover, the Court was of the view that instead of placing the actual date of death of Balu, it could have been proper for the appellants to take steps for substitution along with a petition for condoning the delay in filing the same. The appellate Court having found that the appeal has abated as against the deceased -respondent Balu, has come to the conclusion that as the appeal involves the common interest of the parties concerned, the appeal has abated as a whole. With this finding, he dismissed the petition for substitution.

(3.) THE following substantial questions of law were formulated while admitting the appeal on 12.10.82: (i) Whether in view of the provisions contained in Order XXII, Rule 10 -A of the Code of Civil Procedure, the dismissal of the appeal on the ground of abatement by the learned Court of appeal below is illegal? (ii) Whether in a case where the other respondents who are sufficient to represent the interest of the deceased -respondent are already on the record, the appeal can abate as a whole?