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2006 DIGILAW 784 (PAT)

Shila Devi v. Munna Rai

2006-08-31

RAMESH KUMAR DATTA

body2006
Judgment Ramesh Kumar Datta, J. 1. This civil revision application has been filed for setting aside the order dated 25.9.2000 passed by Sub Judge V/s. Danapur in Title Suit No. 148 of 1992 whereby the petition dated 3.3.2000 filed by the petitioners for abatement of the suit with respect to defendant No. 6 (their father) has been rejected. 2. The plaintiff-opposite party No. 1 had filed the said Title Suit with respect to various properties as described in Schedule-B. Out of which the petitioners herein are concerned only with plot No. 881 which they claim was purchased by ancestor of defendant-opposite parties second set by registered sale deed dated 26.5.1920 and with respect to which it has been prayed in the plaint to declare the same as forged and fabricated defendant Nos.6 and 7 appeared in the said suit filed by the plaintiff -opposite party and they have claimed in the written statement that their ancestor Raja Ram Rai had purchased Plot No. 881 measuring an area of 63 decimals by means of sale deed dated 26.6.1920, from Raghuni Raut ancestor of the plaintiff and came in possession over the same. Subsequently Raja Ram Rai died leaving behind one son. Basudeo Rai defendant No. 7 and his brother Kamal Rai died leaving behind a son Teja Rai (defendant No. 6) whereas another brother Sugar Rai died leaving behind his daughter. It is stated that by a partition half portion of the land was allotted to Teja Rai defendant No. 6 and the other half portion of the land was allotted to defendant No. 7. Basudeo Rai, who came in possession over the same. During the pendency of the suit defendant No. 6. Teja Rai. died on 30.7.1995 leaving behind two daughters, namely Smt. Shila Devi and Smt. Chandrawati Devi. i.e. the two petitioners. It is stated that these petitioners had filed information in the court regarding the death of defendant No. 6 on 19.8.1995 itself and thereafter further petitions were filed for passing an appropriate order and ultimately they filed an application on 3.3.2000 to dismiss the suit as abated. 3. i.e. the two petitioners. It is stated that these petitioners had filed information in the court regarding the death of defendant No. 6 on 19.8.1995 itself and thereafter further petitions were filed for passing an appropriate order and ultimately they filed an application on 3.3.2000 to dismiss the suit as abated. 3. The stand of the opposite party plaintiffs in the court below was that it was mentioned in the petition filed by these petitioners that Teja Rai had executed deed of gift on 24.7.1995, six days prior to his death on 30.7.1995 and for the said reasons these petitioners were not necessary party in the suit. It was further contended that defendant No. 6 was cousin brother of the defendant No. 7, namely, Basudeo Rai who was a party on record and, thus, the suit cannot abate. 4. On a consideration of the contention of the parties application for abatement was rejected by he Sub Judge V/s. Danapur, on 25.9.2000. 5. Learned Counsel for the petitioners has contended that the suit with respect to plot No. 881 must abate as a whole in view of the non-substitution of he heirs of the deceased defendant No. 6 since no order can be passed with respect to the interest of the defendant in the absence of his heirs and legal representatives and under such circumstance the sale deed dated 22.5.1920 cannot be set aside even with respect to defendant No. 7 the impugned order is, therefore, contrary to law and liable to be set aside. 6. In support of his submission learned Counsel relied upon a Judgment of this Court in the case of Ghanshyam Singh V/s. Ram Pratap Singh and Anr. 1984 PLJR 550 in which case the said proposition has been laid down. 7. Learned Counsel for the opposite party No. 1 on the other hand, submitted that the alleged sale deed dated 22.5.1920 was admittedly executed only in favour of Raja Ram Rai whose sole heir is defendant No. 7, Basudeo Rai, who is already on the record and, thus, in that view of the matter Teja Rai, defendant No. 6 was not a necessary party to the suit and there was no necessity of substitution of his heirs and legal representatives on his death. 8. 8. Learned Counsel for the opposite party No. 1 also submits that during the pendency of the suit and prior to his death defendant No. 7 had admittedly transferred the suit property to his daughters, the present petitioners and thus, they became claimant not as heirs and legal representatives of deceased defendant No. 7 but on devolution of interest during the pendency of the suit in their favour on the basis of the said deed of gift. It is submitted that in such a situation at best it can be a case for the application of Order XXII Rule 10 of the C.P.C. which provides: In other cases of an assignment, creation or devolution of any interest during the pendency of a suit the suit may by leave of the court be continued by or against the person to or upon whom such interest as come or devolved. 9. It is submitted that in such a case there is no necessity at all for substitution of heirs of the defendant who has assigned his interest during the pendency of the suit and it is a matter in between such assignees and the Court as to whether the suit can be defended by them or not. Hence, no question of any abatement can arise in the case of such death of such a party. If the Court so thinks fit then they may be added as party to the suit in terms of Order XXII Rule 10 or the Provision contained in Order 1 Rule- 10(2) of the Code. 10. In support of his contention learned Counsel relies upon a decision of the Supreme Court In the case of Ghafoor Ahmad Khan V/s. Basir Ahmad Khan (Dead) by Lrs. -. The short order passed in that case is as follows: After hearing counsel for the respondents we are not satisfied with the High Courts order directing that the appeal has abated and is therefore dismissed: that order cannot be sustained. This is not a case where the death of the sole respondent his heirs are sought to be brought on record. During the lifetime of the sole respondent there was a transfer of the property (subject-matter of appeal) by way of gift to his wife. This is not a case where the death of the sole respondent his heirs are sought to be brought on record. During the lifetime of the sole respondent there was a transfer of the property (subject-matter of appeal) by way of gift to his wife. In other words it is a case of devolution of interest and the case falls under Order XXII, Rule 10 of C.P.C. and there will be no question of abatement. We, therefore, direct that the transferee be brought on the record. The appeal is remitted to the High Court and the same be heard and disposed of in accordance with law. 11. On a consideration of the facts and circumstances of the case. I am of the opinion that in view of the law laid down by the Supreme Court in Ghafoor Ahmad Khans case the present case also falls under Order XXII Rule 10 of the C. P. C. and, thus, there will be no question of any abatement. Further, since the alleget sale deed sought to be declared as forged and fabricated was executed solely in favour of Raja Ram Rai whose sole heir, defendant No. 7, is already on the record, for the said reason also the suit shall not abate. It is accordingly directed that the petitioners as alleged transferees should be brought on the record by the court below and the matter thereafter proceeded with in accordance with law. 12. The civil revision application is, accordingly, dismissed with the aforesaid directions.