CHURYA Vs. BANESHWAR

JUDGEMENT

(1.) In a Letters Patent appeal which was disposed of last year two applications have been filed on behalf of the appellants, one praying that the appeal may be declared to have abated as against Baneshwar, deceased respondent, and the other praying that the appeal be restored to its original number and the names of his two sons be brought on the record in the array of the respondents.

(2.) The suit was brought for ejectment by the plaintiffs against three defendants. Baneshwar was Defendant No. 3 and was not related to the other defendants. The plaintiffs case was that they were occupancy tenants of the plots: that Defendants Nos. 1 and 2 were their sub-tenants and that Defendant No. 3 was the subtenant of the Defendants sub-tanants. The Court of first instance dismissed the suit, but on appeal the District Judge decreed the claim on the 23 of December 1921. A second appeal to the High Court was preferred by Baneshwar. Defendant No. 3 and a learned Judge of this Court allowed the appeal and ordered that the memorandum of appeal presented in the Court of the District Judge should be returned to the respondent for presentation to the proper Court. A Letters Patent appeal was filed by the plaintiffs against this order.

(3.) It is now an admitted fact that Baneshwar, defendant died on the 28 of February 1924 while the appeal was pending, but this fact was not brought to the notice of the Bench hearing the Letters Patent appeal which allowed the appeal and restored the decree of the District. Judge.