YOGANDRA BHAGAT Vs. PRITLAL YADAVA

JUDGEMENT

(1.) A Division Bench of this Court vide its order dated 12-1-2004 has referred this civil revision for consideration by the Full Bench on the question as to whether on the death of plaintiff No. 12/ respondent No.12 during the pendency of the title appeal filed by the defendants 2nd party against the decree of the trial Court, in view of the fact that no application was made within the stipulated period prescribed by law of limitation for substitution of the heirs and legal representatives, the whole appeal had abated or not.

(2.) Title Suit No/54 of 1989 was filed by the plaintiffs-respondents-petitioners against the defendants-appellants-opposite parties and the same was decreed on 20-5-1994. The defendants 2nd party preferred Title Appeal No. 9 of 1994. During the pendency of the aforesaid appeal, respondent No. 12 (plaintiff No. 12) was reported to have died. However, controversy arose with regard to the date and place of the death of the aforesaid respondent, as according to the appellants, he died some time in January 1994, that is, during the pendency of Title Suit No. 54 of 1989 itself, whereas, according to the plaintiffs-respondents 1st party, the death took place on 12-10-1994, that is, during the pendency of the title appeal aforesaid. The matter was sent to the trial Court for inquiry and after such inquiry the trial Court reported that plaintiff No. 12/respondent No. 12, Ram Pravesh Bhagata, died on 12-10-1994. The report aforesaid was challenged in C.R.No.1962 of 1996, which was disposed of with observation that it would be open for the aggrieved party to raise the objection against the report in the title appeal concerned itself. The matter of substitution vice deceased respondent No. 12 was considered and decided by the first appellate Court on 30-8-1997, which held that respondent No. 12 died on 12-10-1994 during pendency of the appeal and as such, the whole appeal stood abated. The aforesaid decision of the first appellate Court was challenged by the appellants in Miscellaneous Appeal No. 379 of 1997. A single Bench of the Court while disposing of the aforesaid appeal had upheld the report of the trial Court with regard to the factum of the date of death of plaintiff No.12/respondent No. 12 and had further found that steps for substitution were not taken within time. However, it further observed as under : -

(3.) Upon the aforesaid observation, the impugned order was set aside and the matter was remitted back to the first appellate Court to reconsider the question as to whether the whole appeal will abate for non- substitution of the heirs and legal representatives of deceased respondent No. 12.