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1982 DIGILAW 195 (ALL)

Ram Charan v. Board of Revenue

1982-02-09

R.S.SINGH

body1982
JUDGMENT R.S. Singh, J.- This writ petition is directed against the order dated 31.3.1977 dismissing the second appeal as abated under Order XXII Rules 3 and 11 C.P.C. 2. The facts of case, in brief, are that a suit under Sections 229-B/209 of the U.P. Zamindari Abolition and Land Reforms Act was filed by Lachhai, respondent no 4, against Lalai, Ram Charan, Bhagwati Prasad and Jagdamba Prasad. The plaintiff claimed for division of one third share in the holdings in dispute. The suit was contested by Lalai and Ram Charan denying the plaintiff's title. 3. The trial court decreed the suit for one third share as claimed by the plaintiff. The decree of the trial court was affirmed by the Additional Commissioner in first appeal. Against the judgment of the Additional Commissioner a second appeal was filed by Lalai and Ram Charan. It appears that during pendency of the second appeal Lalai died, Lalai had left behind him two sons Ram Charan and Mangal. Ram Charan was defendant from the very beginning and was one of the appellants along with Lalai. Thereafter Mangal filed an application for substitution of his name in place of Lalai. This application was rejected by the Board of Revenue as it was filed beyond ninety days and there was no sufficient ground for condonation of delay. The petitioners have challenged the order of the Board of Revenue in writ petition before this Court. 4. It has been contended by the learned counsel for the petitioners that Lalai died during the pendency of the second appeal leaving behind him his two heirs. One of his heirs was already on the record and he was sufficient to represent the estate of the deceased. Therefore, the Board of Revenue has committed an error in abating the appeal. 5. It was contended on behalf of the respondents in reply that it was a suit under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act for division of the holdings and all the co-tenants were necessary parties and Mangal became also one of the tenants on the death of Lalai. Therefore, it was necessary for Mangal to move an application for substitution within time and the Board of Revenue has committed no error in dismissing the application of Mangal which was filed beyond time without any justification. 6. Therefore, it was necessary for Mangal to move an application for substitution within time and the Board of Revenue has committed no error in dismissing the application of Mangal which was filed beyond time without any justification. 6. The suit filed under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act was decided between the parties who were tenure-holders on the date of the filing of the suit. On the death of any of the tenants during the pendency of the suit only the question of substitution arises and in a case of substitution even if some of the heirs and legal representatives are already on the record the suit or appeal proceeds and there is no question of abatement on the ground that all the heirs and legal representatives are not on the record of the case. This is for the reason that in a matter of substitution it is not necessary that all the heirs substitution must be on record. Some of them are sufficient to represent the estate of the deceased. In Shri Ram Prasad v. State Bank of Bikaner and others ( AIR 1972 All 456 ) and Harihar Prasad Singh and others v. Balmiki Prasad Singh and others (AIR 1975 AIR SC 733) it has been clearly held that even if some of the heirs are already on the record the appeal does not abate in view of the fact that all the heirs are not brought on the record. In this case Mangal has already moved an application for substituting his name. There is no bar in allowing him to participate in the proceedings. The Board of Revenue has committed a manifest error in rejecting the application or Mangal and passing an order of abatement of the appeal under Order XXII Rules 3 and 11 of the Code of Civil Procedure and the impugned order of the Board of Revenue cannot sustain in law and deserves to be quashed. 7. In the result, the petition succeeds and is accordingly allowed and the order of the Board of Revenue dated 31.3.1977 is quashed and the Board of Revenue is directed to decide the case on merits in accordance with law.