(1.) Ramkrishna, and others opposite party instituted a Title Suit No. 83 of 1963 in the Court of the Munsif at Begusarai for declaration, of title and recovery of possession in respect of 1 katha 5 dhurs of land, against Amrilal Thakur and others. One of the plaintiffs, namely, Kamlakar Prasad Singh, plaintiff No. 6 died during the pendency of the suit. A petition was filed by the plaintiffs for substitution of the names of his widow and son in place of Kamlakar Prasad Singh. That petition was not filed within time. The petitioners then filed a rejoinder objecting to the prayer of substitution and contending that the whole suit had abated. The learned Munsif -rejected the prayer for substitution. He, however, held that the whole suit had not abated and as such the hearing of the suit would proceed at the instance of the remaining plaintiffs. Against that order this petition has been filed.
(2.) The contention of the learned Counsel, for the petitioners, is that the effect of heirs of plaintiff No. 6 having not been brought on the record is that the entire suit abated and the learned Munsif should have dismissed the suit.
(3.) The allegations in the plaint are that Raudi Singh, ancestor of the plaintiffs, as karta of the joint family had purchased 12 kathas 7 dhurs of land bearing plot No. 899 in the year 1917 and since then the plaintiffs have been coming in possession of the same. The defendants who held land adjacent west of the plaintiffs' land forcibly encroached upon 1 katha 5 dhurs of the plaintiffs" plot on 15 of Asarh, 1367 Fs and thereby dispossessed the plaintiffs therefrom. The plaintiffs, therefore, instituted a suit for eviction of the defendants as trespassers. The defence is that the defendants acquired title over disputed land on account of possession for 40 years. Thus this was a suit instituted against the defendants as trespassers by the plaintiffs, who are members of the joint family. The plaintiffs therefore claimed possession over the disputed land as joint owners. Now the question is whether the death of one of the plaintiffs would have the effect of abatement of the entire suit. For determination of this question, the test is whether the remaining plaintiffs could maintain the suit as filed.