DINESH KUMAR SAHU Vs. URMILA DEVI

JUDGEMENT

(1.) The petitioners are aggrieved of orders dated 24.01.2005, 08.12.2006, 05.09.2007 and 12.06.2008. By order dated 24.01.2005, the application for restoration of the suit was dismissed and by the order dated 05.09.2007, the application for setting-aside the abatement was dismissed. The other two orders are the appellate orders.

(2.) Briefly stated, Title Suit No.50 of 1993 was instituted by the petitioners' father namely, Srikant Sao @ Srilal Sahu for a decree for declaration of his title over the landed property described in schedule-B of the plaint and for confirmation of his possession over the suit land on cancellation of the sale-deed, if any, executed in favour of the defendants. The plaintiff has pleaded that he has purchased the suit land from the legal heirs of the recorded tenant namely, Hiru Gope through a registered sale-deed dated 06.10.1959 and he came in peaceful possession over the suit land. However, during the revisional survey operation the defendant nos.1 to 4 claiming that they are purchasers of the suit land through sale-deed executed by Kali Charan Gope started interfering with the plaintiff's possession over the suit land. The defendant no.4 namely, Rabi Gope filed his written-statement raising various objections to the maintainability of the suit. The case pleaded by the plaintiff that Kashi Gope and Malua became exclusive owners of the land belonging to the recorded tenant namely, Hiru Gope has been dispute by the defendant no.4, pleading that after death of Hiru Gope the entire land recorded in C.S.Khata No.38 was put on auction due to non-payment of the rent to the ex-landlord and it was purchased by Mohan Gope in auction-sale on 15.02.1930. One of the daughters of Hiru Gope filed a petition for cancellation of the auction sale, however, the said application was rejected vide order dated 12.03.1930. The said Mohan Gope thereafter sold the property so purchased by him in auction-sale to Jairam Gope through sale-deed dated 31.10.1932. Baglu Gope, who was grand-father of the defendant no.4; Kali Charan Gope is the father of defendant no.4, was full-blood brother of Jairam Gope and after his death Kali Charan Gope inherited the suit property. The defendant no.4 has further pleaded that during his life time his father sold the land recorded under C.S. Plot No.241 in C.S.Khata No.38 to the defendant nos.2 and 3 through two registered sale-deeds and it has been mutated in their name. Further case set up by the defendants is that during the revisional survey the plaintiff raised objection under the Chhotanagpur Tenancy Act, 1908, however, his objection was rejected by the survey authority.

(3.) During pendency of the suit, father of the petitioners died on 12.04.2000, however, his counsel filed attendance till 27.12.2002. An application for substitution of original plaintiff was filed, but without mentioning the date of death of the original plaintiff and by an order dated 07.04.2003, Title Suit No.50 of 1993 was dismissed for non-prosecution. However, before that an application for substitution of the legal heirs of the plaintiff, who had in the meantime died on 12.04.2000, was filed on 23.01.2003. The defendant no.4 filed his objection to the application for substitution raising two fold objections; (i) no death certificate was produced and (ii) the suit has automatically abated under Order-XXII Rule 3(2) CPC. Thereafter, the petitioners filed an application under Order IX Rule 9 r/w Section 151 CPC for restoration of the suit and this application was registered as Misc. Case No.7 of 2003. The defendants raised an objection to the maintainability of Misc. Case No.7 of 2003 on the ground that after the death of the plaintiff the suit has automatically abated and, therefore, it cannot be restored. In the proceeding of the miscellaneous case, Pradeep Kumar Sahu was examined as PW-1 and he has produced photocopy of the medical certificates. Misc. Case no.7 of 2003 was dismissed on 24.01.2005 on the ground that the suit had abated and, therefore, it cannot be restored. Subsequently, the appellants filed an application dated 05.01.2007 under Order-XXII Rule (3) & (9) CPC for setting-aside the order of abatement along with an application for condonation of delay which was registered as Misc. Case no.3 of 2007. In paragraph no. 7(iii), 9 and 10 of the petition filed under Order-XXII Rule (3) & (9) CPC, the applicants have pleaded as under: