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2004 DIGILAW 538 (PAT)

Ram Narayan Bharti v. Sawitri Devi

2004-05-12

S.N.HUSSAIN

body2004
Judgment 1. Heard learned counsel for the defend-ants-appellants-petitioners as well as learned counsel for the plaintiffs-respondents-opposite parties no.1(a) to 1(d). 2. This matter arises out of Partition Suit No. 09 of 1965, which was decreed on 10.3.1973, whereafter Title Appeal No. 104 of 1973 was filed on 19.4.1973 by the petitioners. 3. Learned counsel for the petitioners submits that the said title appeal stood abated in 1985 under the provisions of Section 4 (c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act and it was revived in 1997. He further contended that since the appellants are illiterate villagers, they got knowledge of the said revival much later and they also could not understand that the heirs of the parties to the appeal, who died during pendency of the abatement, should be substituted immediately. It is further stated that in the aforesaid circumstances the appellants filed a substitution petition on 28.2.2001 alongwith a petition for setting aside abatement and condoning the delay for substitution of the heirs of deceased appellant no.4 and respondents no.1, 2, 3 and 7. The appellants also filed another petition on 17.5.2001 giving details of the death of the said parties, according to which, appellant no.4 had died in 1985, respondent no.1 had died in 1979, respondent no.2 had died in 1990, respondent no.3 had died in 1988 and respondent no.7 had died in 1986. Learned counsel for the appellants-petitioners further submitted that without considering the causes shown for the delay in filing the said substitution petition the learned court below, namely, the learned 5th Additional Sessions Judge, Saran dismissed the said substitution petition by order dated 16.5.2002 passed in Title Appeal No. 104 of 1973 and held that the appeal had stood abated against the said parties. 4. Learned counsel for the opposite parties vehemently opposed the said contention of the learned counsel for the petitioners stating that after revival of the said appeal in the year 1997 it was the duty of the appellants to immediately file substitution petition, but without any valid reason such petitions were filed after about four years, although jn the meantime respondents no. 4 and 5 had filed a petition under Order XXII Rule 10A of the Code of Civil Procedure (hereinafter to be referred as the Code for the sake of brevity) on 28.2.2000 informing the court about the death of only respondents no. 4 and 5 had filed a petition under Order XXII Rule 10A of the Code of Civil Procedure (hereinafter to be referred as the Code for the sake of brevity) on 28.2.2000 informing the court about the death of only respondents no. 1, 2 and 7 and the copy had also been served upon the appellants counsel. Hence, according to the opposite parties there are clear laches on the part of the appellants due to which the abatement cannot be legally set aside. 5. In reply the learned counsel for the petitioners stated that no copy of the aforesaid petition dated 28.2.2000 filed by respondents no.4 and 5 was served upon the appellants or their counsel and the assumption of the court that the said petition was served upon the appellants who had also taken adjournment for filing their rejoinder is absolutely wrong and against the records. 6. After considering the aforesaid facts and circumstances it is apparent that there are laches and delay by the appellants in filing the substitution petition, but the dismissal of the appeal against the said parties would be a disproportionate punishment because the matter is with respect to partition and if the appeal abates against some parties, it would definitely affect the entire claim of partition. 7. Hence, taking a lenient view of the matter i allow this civil revision, set aside the impugned order of the learned court below, set aside the abatement, condone the delay and direct the learned court below to get the heirs of the aforesaid deceased parties, namely, appellant no.4 and respondents nos.1, 2, 3 and 7 substituted in the records of the appeal, but this order would be subject to deposit of cost of Rs. 2,500/-(rupees two thousand and five hundred) by the petitioners-appellants in the court below, which would be withdrawn by the respondents.