SANKRU MAHTO Vs. BHOJU MAHATO

JUDGEMENT

(1.) This appeal has arisen out of a suit instituted by the plaintiffs, seven in number, all being Kurmi Mahtons of Chota Nagpur, for recovery of possession of some plots of land on the allegation that they were part of their joint occupancy holdings and that the defendants wrongfully gob their names recorded in respect of them in the settlement records and that from a portion they were dispossessed in consequence of a proceeding under Section 145, Criminal P.C., and from the rest the defendants forcibly dispossessed them. The defendants disputed the plaintiffs title to the lands in question and pleaded limitation. The trial Court dismissed the suit. The plaintiffs preferred an appeal to the District Court. During the pendency of the appeal plaintiff (appellant) 2 died in Jaith 1336 B.S., and defendant (respondent) 8 died in Kartik 1335 B.S. No application was made for substitution of the names of the representatives of the deceased appellant and the deceased respondent. When the appeal came up for hearing before the learned Subordinate Judge, applications were made on behalf of the remaining plaintiff- appellants to the effect that the heirs of the deceased appellant and the respondent were already on the record. It was alleged that under the tribal custom which governs the parties appellant 2 was succeeded by his brother appellant 1, and that respondent 8 also was succeeded by his brothers already on the record.

(2.) A preliminary objection was raised on behalf of the respondents that the appeal of appellant 2 and the entire appeal against respondent 8 had abated on account of no application for substitution of their representatives having been made within the period allowed by law and that according to the nature of the suit the whole appeal had abated. The learned Subordinate Judge allowed this preliminary objection and dismissed the appeal. The surviving plaintiffs have preferred this second appeal. The only question for our consideration is whether, in the circumstances stated by the surviving plaintiffs in their applications, dated 26 August 1930, the appeal before the learned Subordinate Judge had abated. The relevant provisions of law in this connexion are contained in Rules 2, 3 and 4, Order 22. These rules are as follows: 2. Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the Instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants.

(3.) (1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. (2) Where within the time limited by law no application is made under Sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.