This plaintiff's revision is directed against the order dated 2.12.80 and 30.9.80 passed by the learned Asstt. District Judge, Karimganj. The plaintiff-petitioner filed Title Suit No. 37 of 1972/244 of 1966 in the Court of Munsiff, Karimganj for declaration of jote right over the land in suit of confirmation of possession and permanent injunction against the defendants the present opposite parties. The suit was dismissed by the trial court by judgment date 2.12.78 The plaintiff preferred Title Appeal No. 176 of 1979. During the pendency of the appeal Mustt. Achina Bibi, respondent No. 2 died. It was stated that the petitioner- plaintiff learnt about the death of the respondent No.2 on 24.10.79 from the application of the respondent and filed application on 30.10.79 for substitution of the legal representatives of deceased respondent No.2 stating that the respondent No.3, 4 and 5 who were the legal representatives of the deceased were already on record. The opposite parties on 21.11.79 stated that the deceased respondent died on 14.7.79 and as such, the appeal had abated. It was farther stated that the deceased respondent had left one more representative Halsu Bibi, a daughter. The learned Asstt. District Judge by order dated 30.9.80 allowed the substitution of respondents No.3,4 and 5 who were already on record but rejected the petitioner's prayer for including the name of Halsu Bibi in the array of respondents. The petitioner filed another application with the same prayer but that too was rejected by order dated 2 12.80. Hence this revision. 3. I have heard Shri S.R. Bhattacharjee, learned counsed for the petitioner and also Shri B.L. Singh, learned counsel for the -opposite parties. 4. The impugned orders dated 30.9.80 and 2. 12.80 in so far as rejection of the prayer for bringing on record Smt. Halsu Bibi as legal representative of deceased respondent No. 2 was concerned were clearly erroneous and cannot be sustained. On the death of respondent No.2, her three legal representatives respondent No. 3,4 and 5 were already on record and her estate was adequately represented in the appeal and so no question of abatement of the appeal therefore could arise.
On the death of respondent No.2, her three legal representatives respondent No. 3,4 and 5 were already on record and her estate was adequately represented in the appeal and so no question of abatement of the appeal therefore could arise. The petitioner's submission that he did not know about the other heir, i.e. Smt. Halsu Bibi, appears to be correct because there was no reason that if the fact was known to the petitioner the name of Halsu Bibi would not have been included as heir of deceased respondent No. 2. In any case since the appeal had not abated because the respondents No. 3, 4 and 5 were already on record the petitioner's prayer for inclusion of Halsu Bibi also as representative of deceased respondent No.2 should have been allowed under order 1 Rule 10 of the Code of Civil Procedure. 5. For the aforesaid reasons, this petition is allowed. The impugned orders to the extent of refusal of prayer for bringing on record Smt. Halsu Bibi as legal representative of deceased respondent No. 2, are set aside. Smt. Halsu Bibi shall be arrayed as respondent in the appeal. The records be sent back for expeditious hearing of the appeal to the appellate court below. No costs.