(1.) This is a regular first appeal by the defendants Padmaram and six others in a suit for partition and has come up for arguments before me on a question relating to the abatement of the appeal in circumstances presently to be mentioned.
(2.) The parties are Jats and are descendants of a common ancestor. Nanak and Shriram were two brother. Nanak brought the suit out of which this appeal arises for possession by partition of certain land situate in village Chhapawali, Tehsil Hanumangarh, in which he claimed a half share. Nanak having died is now represented by his five sons Surja and others in this appeal. The defendants in the suit were Padmaram and five others, sons of Shriram, and Gopi, a grandson of Shriram. The suit was filed in a revenue court, namely, that of the Deputy Commissioner, Hanumangarh, and was later transferred to the court of the Collector, Ganganagar, who having been of the opinion that a question of proprietary title was raised in the case referred it to the District Judge, Ganganagar. The correct procedure for the Collector should have been to refer the specific issue or issues relating to proprietary title to the District Judge instead of referring the whole case to him. Be that as it may, the learned District Judge decided the issues which fell within the scope of Section 36 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act (No. I) of 1951, and sent the case back to the Collector. Thereupon the latter held that the plaintiffs were entitled to get possession of half share by partition of the land measuring 1981 Bighas and gave certain directions for the actual partition of the land by metes and bounds with which we are not concerned for the purposes of the present appeal.
(3.) Aggrieved by this decree, the defendants appellants Padmaram and others filed the present appeal in this Court on the 17th October, 1957. Padmaram, however, died on the 1st November, 1958, during the pendency of the appeal in this Court. An application to bring the legal representatives of the deceased Padmaram was made here on the 4th July, 1959, long after the period of limitation of 90 days prescribed by Article 176 of the Limitation Act. This application is opposed by the respondents.
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