JAIDEB HEMBRAM Vs. NIRMAL HEMBRAM

JUDGEMENT

(1.) Heard learned counsel for the petitioners and learned counsel representing the respondent no.2/plaintiff no.3.

(2.) Learned court of Civil Judge, Senior Division-II, Jamtara has by the impugned order dated 9th Jan. 2017 passed in Title Suit No.23/2005 allowed substitution of the legal heirs of plaintiff no.1 Anil Hembram being his widow and daughter (respondent nos. 3 and 4 herein).

(3.) Brief facts relevant for consideration of the issues in controversy are referred to herein after. An application was made on 6th Aug., 2008 for substitution of the legal heirs of plaintiff no.1 (his widow and daughter) before the learned court stating that he had died on 27th May 2008. An application for condonation of delay was also made under Sec. 5 of the Limitation Act on the same day. It was stated therein that the plaintiffs are tribals by caste and illiterate Santhals. It also reiterated that plaintiff no.1 died on 27th May 2008. A petition was also filed on the same day by plaintiff no.2 stating that plaintiff no.1 had died on 27th May 2008. Defendants were allowed time to file rejoinder to the same as is evident from the order dated 6th Aug. 2008. A rejoinder was also filed on the next date i.e. 27th Aug. 2008 stating that the death occurred on 21.04.2008 and the application for substitution is not within time. It is evident from the order dated 4th Dec. 2008 (part of Annexure-9 series to the supplementary affidavit) that death certificate of plaintiff no.1 was also produced before the learned court and kept on record. Undisputedly, the trial proceeded thereafter and evidence of the plaintiffs and defendants were adduced. Defendants evidence was concluded on 24th Aug. 2016. A petition was filed thereafter on 22nd Nov. 2016 by the legal heirs of the deceased plaintiff no.1 before the learned trial court. It also mentioned the death of plaintiff no.1 as on 27th May 2008 and the application made earlier on 6th Aug. 2008 for substitution of his legal heirs I.e. the widow and daughter. A formal prayer for substitution was again made through the instant petition. Learned trial court took note of the aforesaid facts vide order dated 1st Dec. 2016 and also found that no order was passed on the petition dated 6th Aug. 2008 earlier. Upon consideration of the plea of the rival parties, by the impugned order dated 9th Jan. 2017 prayer for substitution has been allowed taking note of the application dated 6th Aug. 2008. Learned trial court also was of the view that on account of mistake of fact such substitution has not been carried out in the records earlier. The suit is of the year 2005 itself.