BINAY KUMAR JAYASWAL Vs. BISHWANATH PRASAD JAYASWAL

JUDGEMENT

(1.) THIS Revision petition has arisen against the order dated 6.6.1998 passed by the Additional District Judge I, Barh in Title Suit No. 2/1988 by which the petition filed on behalf of the petitioner the defendant to the effect that non -inclusion or non -substitution of heirs of defendant no.10 Vijay Kumar Gupta who died in the year 1990 caused the whole suit abated.

(2.) IT appears that the suit is based on a Samarpanama alleged to be made or executed by one Mani Lai Choudhary who happened to be the predecessor -in -interest of the parties to the suit. The dispute is with regard to the appointment of sebait of the trust property. The plaintiff claims to be the most competent person in the family of Anutha Lai Choudhary as per Samarpanama to be appointed as Sebait. The defendant No. 10 Vijay Kumar Gupta also happens to be a descendant of original owner Mani Lai Choudhary through Anutha Lai Choudhary or rather his wife Yasoda Devi. Defendant No.10 Vijay Kumar Gupta admittedly died in the year 1990 but his heirs have not been included as party in the suit and, as such, the suit has abated against defendant no.10. Objection was raised from the side of the petitioner who was contesting defendant to the effect that for abatement of the suit against defendant No.10 had already caused the whole suit to be abated as the same is not maintainable in the present form. On the other hand it is submitted although the same is not there in the impugned order that defendant no.10 had never filed any written statement in the suit and, as such, he cannot be construed to have made the whole suit abated for the purpose of non -inclusion of his heirs in time as to whether the suit would be maintainable in the present form or not would be decided under the proper issues to be framed in the suit or already framed. So this abatement matter would not construe that the maintainability of the suit has been touched by the learned court below. On the matter as has been discussed in the impugned order, I do not find that the learned court below has committed any jurisdictional error in holding that the suit has only been partly abated against defendant No.10 alone and not as a whole.