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2014 DIGILAW 541 (PAT)

Roshan Rai v. Sk. Nizamuddin

2014-05-01

BIRENDRA PRASAD VERMA

body2014
JUDGMENT : BIRENDRA PRASAD VERMA, J.:–This First Appeal has been filed against the judgment and decree dated 19th February, 1975 passed in Title Suit No. 77/135 of 1969/74 by the learned 5th Additional Sub-ordinate Judge, Motihari. 2. The plaintiff-original appellant herein, brought the aforesaid suit for declaration of title and recovery of his possession along with mesne profit against defendant 1st party with respect to the suit land, fully detailed in Schedule 1 of the plaint, or alternatively, for a decree of partition of the lands, fully detailed in Schedule 2 of the plaint, against all the defendants. 3. The suit was contested by the defendants 1st party, who are respondent Nos. 1 to 4 herein in the present appeal, as also by defendant Nos. 5,6 and 7, by filing their separate written statements. Both sides led their evidence and produced all the materials in support of their respective claims with respect to the suit properties. However, on conclusion of trial, by the impugned judgment and decree, the learned trial court came to a finding that the plaintiff-original appellant herein, has got no cause of action and he is not entitled to any relief. Consequently, the suit brought by the plaintiff-original appellant herein was dismissed on contest with costs against defendants Nos.1 to 4 and without costs against the remaining defendants-respondents herein. 4. During the pendency of the appeal, sole plaintiff- appellant herein died on 17.3.1980. By an order dated 25.7.1980 passed by a Division Bench of this Court, heirs and legal representatives of deceased sole appellant were substituted and they all entered appearance through their counsel by filing their duly executed Vakalatnama. Subsequently, appeal was admitted by an order dated 9.7.1981 and notices were issued to the respondents, whereafter the case became ready for final hearing and was, accordingly, listed under the heading “For hearing”. 5. This First Appeal was heard in part on 27.3.2014. However, on the joint request of learned counsels appearing on behalf of the appellants and Mr. Raghib Ahsan, learned senior counsel appearing on behalf of the respondent Nos. 1 to 4, it was adjourned and was ordered to be listed on 15.4.2014 for further hearing. 6. In the meantime, Interlocutory Application No. 2825 of 2014 has been filed under Order 22, Rules 4 and 9 read with rule 11 C.P.C. on behalf of the respondent No. 3 Sk. 1 to 4, it was adjourned and was ordered to be listed on 15.4.2014 for further hearing. 6. In the meantime, Interlocutory Application No. 2825 of 2014 has been filed under Order 22, Rules 4 and 9 read with rule 11 C.P.C. on behalf of the respondent No. 3 Sk. Yakub stating therein that respondent No.1 Sk. Nayamuddin died on 4.10.1999 leaving behind him his widow and five sons, respondent No. 2 Sk. Fida died on 5.11.1986 leaving behind him a son and two daughters, and respondent No. 4, Sk. Ibrahim also died on 25.11.2009 leaving behind him four sons and one daughter as their heirs and legal representatives. It has been pleaded that despite death of respondent Nos. 1,2 and 4, who were main contesting parties in the suit in the court below/and are main contesting party in the present appeal, steps have not been taken by the substituted appellants, despite their knowledge/information about the death of the aforesaid respondents, for substitution of their heirs and legal representatives, therefore, the appeal has abated against the heirs and legal representatives of aforesaid deceased respondents, and has become incompetent and cannot proceed further. 7. Mr. Mathura Nath Roy and Mr. Prabhat Kumar, learned counsels appearing on behalf of the appellants have submitted that despite all communications made to the substituted appellants and despite all efforts made by them, they have not been able to obtain instructions either to press the present first Appeal or controvert the averments made in the aforesaid Interlocutory Application No. 2825 of 2014 with respect to death of the contesting respondent Nos. 1,2 and 4. It is submitted by learned counsel appearing on behalf of the appellants that in absence of instructions, they are not in a position to controvert the averments made in the Interlocutory Application filed on behalf of the respondent No. 3. It is further submitted that in absence of instructions from the appellants, they are not in a position to press this appeal. 8. Taking into consideration the facts stated in Interlocutory Application No. 2825 of 2014, and taking into consideration the submissions made by the learned counsels appearing on behalf of the appellants, this Court is left with no option but to dismiss the whole appeal, as it has not only abated vice deceased respondent Nos. 1,2 and 4, but it has become incompetent and cannot proceed further. 9. 1,2 and 4, but it has become incompetent and cannot proceed further. 9. Consequently, the First Appeal is dismissed as not pressed, but there shall be no order as to costs. 10. Interlocutory Application No. 2825 of 2014 stands, accordingly, disposed of. ?