Research › Search › Judgment

Patna High Court · body

2001 DIGILAW 662 (PAT)

Mohammad Isha v. Gulab Prasad

2001-07-30

ASHOK KUMAR VERMA

body2001
Judgment Ashok Kumar Verma, J. 1. The defendant appellant has filed this Misc. Appeal against the order dated 24-5-1993 passed by the Additional District Judge VI, Siwan, in Title Appeal No. 57 of 1989, whereby the learned Additional District Judge has held that the appeal has abated as a whole and accordingly, he has dismissed the appeal. The plaintiffs, who are respondents in this Misc. Appeal had filed Title Suit No 199 of 1982. The learned Additional Munsif had decreed the suit and directed the defendant to take Rs. 1,500.00 from the plaintiffs within three months from the date of the order and to reconvey the disputed suit land to the plaintiffs. The defendant had preferred Title Appeal No. 57 of 1989 against the judgment and decree passed by the learned Additional Munsif, in the Court of District Judge, Siwan. 2. According to the defendant-appellant, in Title Appeal No. 57 of 1989 notices were issued and the registered cover issued to opposite Party No. 2, Smt. Indu Devi was returned with an endorsement that she had died and on 28-8-1991 direction was given by the lower Appellate Court to the appellant to take proper action in the matter. On 1-8-1992, the Title Appeal was dismissed for default by the learned Additional District Judge and the appellant had filed Miso. Case No. 4 of 1992 for its restoration. In the Misc. case, an application was filed by the opposite parties on 21-11-1992 that Smt. Indu Devi had died on 15-7-1991 leaving behind a daughter, Guddi and husband, Harendra Hajra, who were not substituted in the case and the appeal had abated. 3. It was argued by the learned lawyer for the appellant that on 15-2-1993, a petitioner was filed by the appellant in Title Appeal "No. 57 of 1989 for directing the respondent Gulab Prasad to furnish the names of the Police Station and Post Office of village Damodar. It has been stated in the petition dated 15-2-1993 filed on behalf of the appellant in Title Appeal No. 57 of 1989 that during hearing of the Misc. Case respondents disclosed on 21-11-1992 that respondent, Smt. Indu Devi had died on 15-7-1991 leaving behind her husband and a daughter. According to the petition, the appellant tried to trace out the village Damodarpur but he could not trace out the village Damodarpur due to lack of full address. Case respondents disclosed on 21-11-1992 that respondent, Smt. Indu Devi had died on 15-7-1991 leaving behind her husband and a daughter. According to the petition, the appellant tried to trace out the village Damodarpur but he could not trace out the village Damodarpur due to lack of full address. A rejoinder of the petition was filed on behalf of the respondents stating therein that during pendency of the suit, Indu Devi was married to Harendra Hajra of village Damodarpur, who was blessed with a daughter named Guddi. Thereafter, respondents filed a petition on 2-4-1993 to declare the appeal abated as a whole. A rejoineder was filed on behalf of the appellant on 30-4-1993 stating therein that Indu Devi did not die on 15-7-1991 and her whereabouts is not known to the appellant. 4. None had appeared on behalf of the respondents during hearing of this Misc. Appeal. 5. On 21-11-1992, a petition had been filed by the opposite parties, who are respondents in this appeal, in Misc. Case No. 4 of 1992 that the Opposite Party No. 2, Indu Devi was married to Harendra Hajra of village Damodarpur of District Bettiah and she had died on 15-7-1991 leaving behind her daughter Guddi and husband, who were alive. So the names of the District and village where Indu Devi was married had been furnished by the respondents in Misc. Case No. 4 of 1992. In the petition dated 15-2-1993 filed by the appellant in Title Appeal No. 57 of 1989, the fact has been admitted that during the hearing of the Misc. Case respondents had disclosed on 21-11-1992 that Indu Devi had died on 15-7-1991 leaving behind her husband and daughter. This shows that the appellant had the information that Indu Devi was married to Harendra Hajra of village Damodarpur District Bettiah. In the petition dated 15-2-1993 filed in Title Appeal No. 57 of 1989 before the Additional District Judge, the appellant has stated that he tried to trace out village Damodarpur so that it could be known whether Indu Devi ever lived there with Harendra Hajra and whether she is dead or alive but he could not trace out the village Damodarpur in Jack of full address. Admittedly, the information was furnished by the respondents by his petition dated. 21-11-1992 filed in Misc. Case No. 4 of 1992 that village Damodarpur was in the District of Bettiah. Admittedly, the information was furnished by the respondents by his petition dated. 21-11-1992 filed in Misc. Case No. 4 of 1992 that village Damodarpur was in the District of Bettiah. The appellant in his petition dated 15-2-1993 filed in Title Appeal No. 57 of 1989 has stated that he could not trace out the village. When the name of the village and District is furnished, on inquiry it can well be ascertained whether that village exists in that district or not but there is no such statement that the village does not exist in the District Bettiah but there is statement to the effect that village Damodarpur could not be traced in lack of full address. It was submitted by the learned lawyer for the appellant that the postal peon had reported on registered cover that Indu Devi had died but no inquiry regarding death of Indu Devi was made. The learned Additional District Judge has mentioned in the impugned order dated 24-5-1993 that the records shows that the notices were issued against Respondent No. 1, who appeared hut registered post issued by the Court was received on 28-8-1991 with a report that Respondent No. 2 has died and since then in spite of the Courts order, the appellant did not take any step for substitution. When it came to the knowledge of the appellant that one of the respondents had died, he could have taken steps for substitution of the said heirs of Indu Devi in place of her but no step was taken by the appellant for the substitution of heirs of Indu Devi. When names of the husband of Indu Devi and her daughter with name of village and district had been furnished, the appellant should have taken steps, for substitution of heirs of Indu Devi. It is apparent from the impugned order passed by the learned Additional District Judge that in spite of the Courts order the appellant did not take any step for substitution. 6. In the facts and circumstances of the case, there is no merit in this Misc. Appeal. It is accordingly dismissed. In the facts and circumstances, there will be no order as to costs.