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2014 DIGILAW 640 (PAT)

S. M. Kalim v. S. M. Sarfudin

2014-06-03

BIRENDRA PRASAD VERMA

body2014
ORDER : This First Appeal has been filed under section 96 of the Code of Civil Procedure, 1908 ( in short “C.P.C.”) against the judgment and decree dated 30th September 1983 passed in Title Suit No.134 of 1980 by the learned sub-ordinate Judge, Biharsharif, Nalanda. 2. The plaintiff-original respondent No.1 herein, S.M. Sarfuddin, who is now dead and has been substituted by his heirs and legal representatives, namely, respondent Nos. 1(i) to 1(vii), brought the aforesaid suit for partition claiming his share to the extent of 40 paise from the suit properties, fully detailed in the plaint. However, in view of the averments made in the Written Statement filed on behalf of the defendants, the plaint was amended and the plaintiff- original respondent No.1 herein, made a further prayer for a declaration that the sale deed dated 6.12 1923 allegedly executed by Sk. Md. Umar in fvour of Sk. Md. Aziz is a forged and fabricated document. 3. Finally, on contest, by the impugned judgment and decree passed by the learned trial court, the suit was decreed in part with costs. The plaintiff-original respondent No.1 herein was held to be entitled to have share in the suit properties to the extent of 20 paise only. 4. It is common case of the parties that the suit properties originally belonged to Mostt. Tetu, widow of Sk. Altaf Hussain. Aforesaid Mostt. Tetu died leaving behind two sons, namely, Sk. Md. Umar and Sk. Md. Aziz as also one daughter namely Bibi Asma, as her heirs and legal representatives. It is the specific case of the plaintiff-original respondent No.1 herein, that after the death of Mostt. Tetu, the suit properties devolved upon her heirs, and Sk. Md. Umar, her one of the sons, inherited share to the extent of 40 paise. After death of Sk. Md. Umar, his share in the suit properties to the extent of 40 paise devolved upon his daughter Mostt. Husna. The plaintiff-original respondent No.1 herein, S.M.Sarfuddin, being the son of aforesaid Mostt. Husna, claimed to have acquired his right, title and possession over the suit properties to the extent indicated above on the basis of a deed of Tamliknama (deed of transfer) dated 01.3.1975. It may be noted here that the Hon?ble Apex Court in the case of Ram Gopal Vs. Husna, claimed to have acquired his right, title and possession over the suit properties to the extent indicated above on the basis of a deed of Tamliknama (deed of transfer) dated 01.3.1975. It may be noted here that the Hon?ble Apex Court in the case of Ram Gopal Vs. Nand Lal [ AIR 1951 SC 139 ] (Paragraph 7) has defined the deed of Tamliknama as an instrument/document by which maliki or ownership rights are transferred and the document expressly says that the grantee/transferee has been made a “malik” or owner. 5. The defendant No.1, the defendant Nos. 5 to 7 as also the defendant Nos. 8 to 10 filed their separate written statements taking same and similar grounds and their common case was that Sk. Md. Umar executed a sale deed in favour of Sk. Md. Aziz in the year 1923. According to them, after the death of Mostt. Tetu, her heirs divided the suit properties and came in separate possession over their respective shares. Subsequently, Sk. Md. Umar transferred his entire share in the suit property to his brother Sk. Md. Aziz through a registered sale deed dated 6.12.1923. Therefore, according to the defendants, Mostt. Husna, daughter of Sk. Md. Umar, did not inherit any property belonging to her father Sk. Md. Umar. Hence, on the basis of deed of Tamlikmama executed by Mostt. Husna in favour of the plaintiff-original respondent No.1 herein, he did not acquire any right, title and possession over the suit properties. It was also pleaded by the aforesaid defendants that the deed of Tamliknama in favour of the plaintiff was a collusive document. 6. After considering all the evidence/materials, both oral and documentary, produced by the parties, by the impugned judgment and decree passed by the learned trial court, the suit brought by the plaintiff-original respondent No.1 herein was decreed in part on contest with costs. The learned trial court has come to a conclusion that the plaintiff-original respondent No.1 herein acquired his right, title and interest over the suit properties to the extent of 20 paise share. It was further held that the suit properties are still joint between the plaintiff and the defendants. The plaintiff-original respondent No.1 herein was held entitled to get the suit properties partitioned to the extent of his 20 paise share only. 7. The defendant No.1, being the son of Sk. Md. Aziz and the defendant Nos. It was further held that the suit properties are still joint between the plaintiff and the defendants. The plaintiff-original respondent No.1 herein was held entitled to get the suit properties partitioned to the extent of his 20 paise share only. 7. The defendant No.1, being the son of Sk. Md. Aziz and the defendant Nos. 8 to 10, being the daughters of Sk. Md. Aziz, being aggrieved by the impugned judgment and decree passed by the learned trial court, have preferred the present First Appeal questioning its validity and correctness, which was admitted by this Court by an order dated 3.12.1996 and notices were issued to the respondents. Now, the notices have been validly served upon all of them. 8. Indisputably, appellant No.2 Sabba Khatoon died on 8.1.1988 leaving behind her four sons and five daughters as her heirs and legal representatives. Despite the death of appellant No.2 as far back as in 1988, no petition was filed by her legal representatives seeking their substitution in place of the deceased appellant No.2 and seeking permission of this Court to prosecute this appeal further. Indisputably, for 17 long years, no petition was filed even on behalf of the surviving appellants seeking substitution of the heirs and legal representatives of deceased appellant No.2 in her place. 9. However, after more than 17 years from the date of death of deceased appellant No.2, I.A. No. 5731 of 2005 was filed on behalf of the surviving appellants stating therein that appellant No.2 has died on 8.1.1988 leaving behind her four sons and five daughters, fully detailed in paragraph No.1 of the aforesaid Interlocutory Application. Therefore, a prayer was made that the aforesaid heirs and legal representatives be substituted after expunging the name of deceased appellant No. 2. 10. By the office notes dated 25.1.2006, two defects were pointed out with respect to the aforesaid Interlocutory Application No. 5731 of 2005. By an order dated 23.6.2006 passed by a Bench of this Court, one week’s time was granted to the appellants to remove the defects with respect to the aforesaid Interlocutory Application No. 5731 of 2005. The order dated 23.6.2006 was peremptory in nature. 11. By an order dated 23.6.2006 passed by a Bench of this Court, one week’s time was granted to the appellants to remove the defects with respect to the aforesaid Interlocutory Application No. 5731 of 2005. The order dated 23.6.2006 was peremptory in nature. 11. Unfortunately, the aforesaid order dated 23.6.2006 was not carried out by the learned counsel appearing on behalf of the surviving appellants, as a result thereof the aforesaid Interlocutory Application No.5731 of 2005 stood rejected on account of non-compliance of the Court’s aforesaid order dated 23.6.2006. Consequently, by an order dated 19.10.2006 a note of abatement of the appeal, with respect to the heirs of deceased appellant No.2 was recorded. 12. Despite rejection of I.A. No. 5731 of 2005, which was in the nature of substitution petition, no petition was filed on behalf of the surviving appellants for restoration of the aforesaid Interlocutory Application No. 5731 of 2005. Even a petition for setting aside the abatement of the appeal vice deceased appellant No.2 was not filed. However, after about three years on 18.5.2009, Interlocutory Application No. 3331 of 2009 was filed on behalf of the surviving appellants stating therein once again that the appellant No.2 died on 8.1.1988 leaving behind her heirs and legal representatives, fully detailed in paragraph No.1 of the aforesaid Interlocutory Application. Curiously enough, this Interlocutory Application No. 3331 of 2009 was also filed with certain defects, which were pointed out by the office notes dated 25.11.2013. 13. By an order dated 26.11.2013 passed by a Bench of this Court, as prayed for by the learned counsel appearing on behalf of the surviving appellants, four weeks time was granted to file Vakalatnama on behalf of the proposed heirs of deceased appellant No.2 and also to remove the defects pointed out by the office. The aforesaid order dated 26.11.2013 was peremptory in nature. Unfortunately, even this order dated 26.11.2013 was not carried out by the surviving appellants and their counsel, as a result thereof Interlocutory Application No. 3331 of 2009 also stood rejected on account of non-compliance of the Court’s order. 14. By the office notes dated 22.1.2014, it was pointed out that the First Appeal stood abated vice deceased appellant No.2 on account of rejection of the substitution petitions, referred to above, filed on behalf of the surviving appellants. Hence, competency matter of the present First appeal was placed for consideration. 15. 14. By the office notes dated 22.1.2014, it was pointed out that the First Appeal stood abated vice deceased appellant No.2 on account of rejection of the substitution petitions, referred to above, filed on behalf of the surviving appellants. Hence, competency matter of the present First appeal was placed for consideration. 15. In the aforesaid factual matrix, and after hearing the learned counsel appearing on behalf of the surviving appellants as also the contesting substituted respondent Nos. 1(i) to 1(vii), this Court on 24.1.2014 had passed the order as under: “In view of the office note dated 22.01.2014, learned counsel appearing on behalf of the substituted respondent no. 1(i) to 1(vii) has submitted that whole appeal is liable to be dismissed as it has become incompetent. According to him, appellant no. 2- Sabba Khatoon died as far back as on 08.01.1988 leaving behind her heirs and legal representatives, yet no step for substitution was taken for about 17 years by her heirs and legal representatives seeking their substitution in place of deceased appellant no. 2 and seeking permission of this Court to prosecute this appeal further. However, in the year 2005, I.A. No. 5731 of 2005 was filed by the surviving appellants seeking substitution of the heirs and legal representatives of deceased appellant No.2. Aforesaid Interlocutory application stood dismissed in the year 2006 on account of non-compliance of Court’s peremptory order dated 23.06.2006 passed by a Bench of this Court. By order dated 19.10.2006 a note was made that appeal abated with respect to the heirs and legal representatives of deceased appellant no. 2. Admitted case of the parties is that till date no petition has been filed for restoration of aforesaid I.A. No. 5731 of 2005 or for modification of the order dated 23.06.2006 passed by a Bench of this Court. However, subsequently in the year 2009, fresh substitution petition vide I.A. No. 3331 of 2009 was filed on behalf of the appellants seeking substitution of heirs and legal representatives of deceased appellant no. 2. It is submitted by the learned counsel appearing on behalf of the substituted respondent no. 1(i) to 1(vii) that this interlocutory application was not maintainable because learned counsel appearing on behalf of the surviving appellants was holding no power on behalf of the heirs and legal representatives of deceased appellant no.2. 2. It is submitted by the learned counsel appearing on behalf of the substituted respondent no. 1(i) to 1(vii) that this interlocutory application was not maintainable because learned counsel appearing on behalf of the surviving appellants was holding no power on behalf of the heirs and legal representatives of deceased appellant no.2. Unfortunately, the aforesaid I.A. No. 3331 of 2009 has also stood rejected on account of non-compliance of Court’s order dated 26.11.2013. It has further been pointed out by the learned counsel that this appeal has abated against the heirs and legal representatives of deceased respondent no. 3 as far back as on 23.10.1997. Therefore, the appeal has become incompetent. The present appeal arises out of a partition suit and in view of the abatement of the appeal with respect to the heirs and legal representatives of deceased appellant no.2 as also against the heirs and legal representatives of respondent no.3, it is contended that whole appeal has to be dismissed. In support of his above contentions, reliance has been placed by the learned counsel appearing on behalf of the respondent no. 1(i) to 1(vii) on the judgments of the Hon’ble Apex Court in the cases of State of Punjab v. Nathu Ram [ AIR 1962 SC 89 ], Ram Sarup vs. Munshi [ AIR 1963 SC 553 ], Rameshwar Prasad v. Shambehari Lal [ AIR 1963 SC 1901 ], Union of India v. Shree Ram Bohra [ AIR 1965 SC 1531 ], D.F.O. South Kheri v. Ram Sanehi [ AIR 1973 SC 204 ] & Dwarika Prasad v. Hari Kant Prasad [ AIR 1973 SC 655 ]. However, when the learned counsel appearing on behalf of the appellants was asked to address the Court in support of this appeal and to show that the appeal can still proceed despite its abatement, as referred to above, then he simply made a prayer for a short adjournment. Though this Court was not inclined to accept the prayer at such a late stage, but in order to do complete justice and in order to give one more opportunity to the learned counsel appearing on behalf of the appellants, the matter is passed over for the day and now it shall be taken up on Monday (27.01.2014), when appropriate further order shall be passed. It is clarified that no further adjournment shall be granted to the learned counsel for the appellant on that date.” 16. In the light of aforesaid order dated 24.1.2014, this appeal was heard at great length on several dates on competency matter and finally by an order dated 12.2.2014, the order was reserved. 17. Both parties have filed their separate written arguments on the issues of abatement/non-abatement of the appeal as a whole. 18. Learned counsel appearing on behalf of the surviving appellants, by referring to the merits of the case of the parties, submitted that the suit brought by the plaintiff-original respondent No.1 herein, was not only for partition of the suit properties, but was also for a declaration of the sale deed dated 6.12.1923 executed by Sk. Md. Umar in favour of Sk. Md. Aziz as a forged and fabricated document. Therefore, according to him, despite abatement of appeal vice deceased appellant No.2, the whole appeal cannot be said to have abated and it cannot be said to have become incompetent. In support of his above contention he has placed reliance on a Full Bench Judgment of this Court in the case of Yogendra Bhagata V. Pritlal Yadav [ 2009 (3) PLJR 697 ] as also a judgment of the Hon’ble Apex Court in the case of Shahazada Bi V. Halimabi [ AIR 2004 SC 3942 ]. 19. Per contra, the learned counsel appearing on behalf of the substituted respondent Nos. 1(i) to 1(vii) has vehemently contested the submissions made by the learned counsel appearing on behalf of the surviving appellants. According to him, the appellant No.2 died on 8.1.1988, but no substitution petition was filed either by her heirs and legal representatives or by the surviving appellants for 17 long years, as a result thereof the appeal stood abated vice deceased appellant No.2. It was further submitted by the learned counsel appearing on behalf of the aforesaid contesting respondents that after more than 17 years, Interlocutory Application No. 5731 of 2005 was filed on behalf of the surviving appellants, but that petition was filed without any petition for condonation of delay and for setting aside the abatement of the appeal. It was further submitted by the learned counsel appearing on behalf of the aforesaid contesting respondents that after more than 17 years, Interlocutory Application No. 5731 of 2005 was filed on behalf of the surviving appellants, but that petition was filed without any petition for condonation of delay and for setting aside the abatement of the appeal. It was pointed out by him that under Article 120 of The Limitation Act, 1963 a petition for substitution is required to be filed within 90 days from the date of death of the concerned party and under Article 121 of The Limitation Act, 1963, a petition for setting aside the abatement of the appeal was required to be filed within 60 days thereafter, but no such steps were taken by the surviving appellants or by the heirs of the deceased appellant No.2, as a result thereof the appeal stood abated vice deceased appellant No.2 as also against her heirs and legal representatives. It was next pointed out that the aforesaid Interlocutory Application No. 5731 of 2005 and subsequent Interlocutory Application No. 3331 of 2009, filed on behalf of the surviving appellants in the same subject matter, stood rejected on account of non-compliance of the Court’s order. 20. Learned counsel appearing on behalf of the contesting respondent Nos. 1(i) to 1(vii) has further pointed out that appellant no.1 S.M.Kalim also died on 29.11.2008, yet till date steps for substitution have not been taken by other surviving appellants or by his heirs and legal representatives.. It was next pointed out that respondent No. 3 Nazma Khatoon died during the pendency of the appeal and by an order dated 3.10.1997 a note of abatement was recorded against her heirs and legal representatives. It has also been pointed out that respondent No.4 Kudaisa Khatoon died on 23.3.2012, respondent No. 5 S.M. Tarique died on 20.12.2001, respondent No. 6 S.M.Vasique died on 27.6.2011 and respondent No. 7 S.M. Vamique died on 27.3.2012, but till date steps have not been taken by the surviving appellants for substituting their heirs and legal representatives. 21. In the aforesaid factual matrix, it was pleaded that the whole appeal, which arises out of a judgment and decree passed in a Partition Suit, has become incompetent and is fit to be dismissed by this court. 22. The aforesaid issues involved and raised in the present First Appeal are no longer a res integra. 21. In the aforesaid factual matrix, it was pleaded that the whole appeal, which arises out of a judgment and decree passed in a Partition Suit, has become incompetent and is fit to be dismissed by this court. 22. The aforesaid issues involved and raised in the present First Appeal are no longer a res integra. This issue came up for consideration before the Hon’ble Apex Court on a number of occasions and law has been well crystallized by the Hon’ble Apex Court by different judicial pronouncements made on the issue from time to time. 23. In the case of State of Punjab V. Nathu Ram [ AIR 1962 SC 89 ], the scheme and scope of Order 22, Rule 4 C.P.C. came up for consideration in the background that an appeal preferred by the State Government of Punjab before the High Court of Punjab was dismissed on the ground that during the pendency of appeal one of the respondents died, but no steps were taken by the appellant-State of Punjab for bringing his legal representatives on record, as a result thereof the appeal was treated to have abated with respect to the aforesaid deceased respondent and consequently the whole appeal was dismissed by the High Court. When the matter came up for consideration before the Hon’ble Apex Court, three tests were laid down for passing an order of abatement of the whole appeal. For better appreciation paragraph Nos.6 and relevant portion of paragraph 8 are reproduced herein below:- “(6) The question whether a Court can deal with such matters or not, will depend on the facts of each case and therefore no exhaustive statement can be made about the circumstances when this is possible or is not possible. It may, however, be stated that ordinarily the considerations which weigh with the Court in deciding upon this question are whether the appeal between the appellants and the respondents other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the Court. The test to determine this has been described in diverse forms. The test to determine this has been described in diverse forms. Courts will not proceed with in appeal (a) when the success of the appeal may lead to the Court’s coming to a decision which be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the Court’s passing a decree which will be contradictory to the decree which had become final with respect to the same subject matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the Court and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective, that is to say, it could not be successfully executed.” (8) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - “The abatement of an appeal means not only that the decree between the appellant and the deceased respondent has become final, but also, as a necessary corollary, that the appellate Court cannot, in any way, modify that decree directly or indirectly. The reason is plain. It is that in the absence of the legal representatives of the deceased respondent, the appellate Court cannot determine anything between the appellant and the legal representatives which may affect the rights of the legal representatives under the decree.” 24. In the case of Ram Sarup V. Munshi [ AIR 1963 SC 553 = (1963) 3. S.C.R. 858], a Constitution Bench of five Judges of the Hon’ble Apex Court has laid down the law in paragraph 4 as under:- “where a decree is a joint one and a part of the decree has become final, by reason of abatement, the entire appeal must be held to be abated.” 25. S.C.R. 858], a Constitution Bench of five Judges of the Hon’ble Apex Court has laid down the law in paragraph 4 as under:- “where a decree is a joint one and a part of the decree has become final, by reason of abatement, the entire appeal must be held to be abated.” 25. In the case of Rameshwar Prasad V. M/s. Shyam Beharilal Jagannath [ AIR 1963 SC 1901 = (1964) 3 S.C.R. 549 ], the scheme and scope of Order 22, Rule 9 and that of the Order 41, Rule 4 C.P.C. came up for consideration before a three Judge Bench of the Hon’ble Apex Court in the background that in a pending Second Appeal one of the appellants died during the pendency of the appeal, but no application was filed for bringing his legal representatives on the record within the prescribed time, as a result of which the appeal of the deceased appellant was held to have abated and could not proceed further. It was further held that the provisions of Order 41, Rule 4 C.P.C. do not override the provisions of Order 22, Rule 9 C.P.C. The aforesaid two provisions deal with different stages of appeal and provide for different contingencies. Hence, it was held that it would not salvage the appeal, which stood abated on account of non-substitution of the legal representatives of the deceased co-appellant. 26. In the case of Union of India V. Ram Charan [ AIR 1964 SC 215 ], a three Judge Bench of the Hon’ble Apex Court has held that the Court has no inherent power to add legal representatives of a deceased respondent in terms of Section 151 C.P.C., if the suit had abated on account of appellant’s failure to take steps within time to bring the legal representatives of the deceased party on the record. The suit abates so far the deceased plaintiff or the deceased defendant is concerned. The effect of such an abatement on the suit of the surviving plaintiff or the suit against the surviving defendants depends on other considerations as held in the case of State of Punjab V. Nathu Ram (Supra). 27. The above principles were reiterated once again by a three Judge Bench of the Hon’ble Apex Court in the case of Union of India V. Shree Ram Bohra [ AIR 1965 SC 1531 ]. 27. The above principles were reiterated once again by a three Judge Bench of the Hon’ble Apex Court in the case of Union of India V. Shree Ram Bohra [ AIR 1965 SC 1531 ]. It was held in paragraph 16 as under:- “when the decree in favour of the respondents is joint and indivisible, the appeal against the respondents other than the deceased respondent cannot be proceeded with if appeal against the deceased respondent has abated.” 28. The principles enunciated in the case of State of Punjan vs. Nathu Ram (Supra) were reinforced and reiterated once again by a three Judge Bench of the Hon’ble Apex Court in the case of Sri Chand Vs. M/s. Jagdish Pershad Kishan Chand [ AIR 1966 SC 1427 ]. It was held in paragraph 7 that the three tests suggested in the aforesaid case are not cumulative tests. Even if one of them is satisfied, the Court may, having regard to all the circumstances, hold that the appeal has abated in its entirety. 29. In the case of Shahazada Bi V. Halimabai (Supra), on which the learned counsel appearing on behalf of the appellants has placed reliance, a two Judge Bench of the Hon’ble Apex Court while considering the scheme of Order 22, Rule 4 C.P.C., has held in paragraph 9 as follows:- “Order 22 R.4 C.P.C. lays down that where within the time limited by law, no application is made to implead the legal representatives of a deceased-defendant, the suit shall abate as against a deceased-defendant. This rule does not provide that by the omission to implead the legal representative of a defendant, the suit will abate as a whole. What was the interest of the deceased-defendant in the case, whether he represented the entire interest or only a specific part is a fact that would depend on the circumstances of each case. If the interests of the co-defendants are separate, as in case of co-owners, the suit will abate only as regards the particular interest of the deceased party.” 30. In fact, the issues involved in the present appeal are squarely covered by a recent judicial pronouncement made by the Hon?ble Apex Court in the case of Budh Ram Vs. Bansi [ (2010) 11 SCC 476 ]. In fact, the issues involved in the present appeal are squarely covered by a recent judicial pronouncement made by the Hon?ble Apex Court in the case of Budh Ram Vs. Bansi [ (2010) 11 SCC 476 ]. While laying down the principles in that case, large number of previous judgments of the Hon?ble Apex Court including that of State of Punjan vs. Nathu Ram (Supra) and Shahazada Bi V. Halimabai (Supra) were taken into consideration and thereafter the law was laid down in paragraphs 17 and 18 of the aforesaid Judgment, which are as under:- “17. Therefore, the law on the issue stands crystallised to the effect that as to whether non-substitution of LRs of the respondent-defendants would abate the appeal in toto or only qua the deceased respondent-defendants, depends upon the facts and circumstances of an individual case. Where each one of the parties has an independent and distinct right of his own, not interdependent upon one or the other, nor the parties have conflicting interests inter se, the appeal may abate only qua the deceased respondent. However, in case, there is a possibility that the court may pass a decree contradictory to the decree in favour of the deceased party, the appeal would abate in toto for the simple reason that the appeal is a continuity of suit and the law does not permit two contradictory decrees on the same subject-matter in the same suit. Thus, whether the judgment/decree passed in the proceedings vis-à-vis remaining parties would suffer the vice of being a contradictory or inconsistent decree is the relevant test. 18. The instant case requires to be examined in view of the aforesaid settled legal propositions. Every co-owner has a right to possession and enjoyment of each and every part of the property equal to that of other co-owners. Therefore, in theory, every co-owner has an interest in every infinitesimal portion of the subject-matter, each has a right irrespective of the quantity of its interest, to be in possession of every part and parcel of the property jointly with others. A co-owner of a property owns every part of the composite property along with others and he cannot be held to be a fractional owner of the property unless partition takes place.” 31. A co-owner of a property owns every part of the composite property along with others and he cannot be held to be a fractional owner of the property unless partition takes place.” 31. In the light of above judicial pronouncements, after having heard the parties and taking into consideration the pleadings, as also the materials available on the record, this Court finds that the appellants as also the respondents are descendants of their common ancestor, namely, Mostt. Tetu, widow of Sk. Altaf Hussain. The appellants are the son and daughters of Sk. Md. Aziz, one of the sons of Mostt. Tetu. The respondent Nos. 2 to 7, who were also the defendants in the court below, are also from the branch of Sk. Md. Aziz. However, the original respondent No.1 Sk. Md. Sarfuddin was the grand son of Sk. Md. Umar, another son of Mostt. Tetu. It is also not in dispute that the plaintiff-original respondent No.1 herein, brought a suit for partition and claimed his share to the extent of 40 paise from the suit properties, but subsequently in view of plea taken by the defendants, he made a further prayer for a declaration that the alleged sale deed dated 6.12.1923 was a forged and fabricated document. 32. In view of the judicial pronouncements made by the Hon’ble Apex Court, referred to above, it is now well settled that in a suit for partition each and every co-sharer/co-owner is in the position of a plaintiff as also defendant. For an effective decision of a partition suit/appeal, all the parties/co-owners or their heirs and legal representatives, in case of death of any of them, are required to be represented and absence of any of them would make the suit/appeal incompetent. It is also well settled that appeal is a continuation of the suit. Where claim of the parties with respect to the suit properties is indivisible or inseparable, in that case on account of non-substitution of heirs of any of the parties, the suit/appeal as a whole becomes incompetent and is liable to be dismissed. 33. So far the present appeal is concerned, indisputably, appellant No.2 died on 8.1.1988 and till date her heirs and legal representatives have not been substituted. Two Interlocutory Applications filed on behalf of the surviving appellants seeking substitution of the heirs of the deceased appellant No.2 stood rejected, as has been noticed above. 33. So far the present appeal is concerned, indisputably, appellant No.2 died on 8.1.1988 and till date her heirs and legal representatives have not been substituted. Two Interlocutory Applications filed on behalf of the surviving appellants seeking substitution of the heirs of the deceased appellant No.2 stood rejected, as has been noticed above. Besides that it has been pointed out by the learned counsel appearing on behalf of the contesting respondent Nos. 1(i) to 1(vii), which has not been disputed by the learned counsel appearing on behalf of the surviving appellants, that during the pendency of this appeal the appellant No.1 as also the respondent Nos. 4,5,6 and 7 have also died long ago, which have been noticed above, yet steps for substitution of their heirs and legal representatives have not been taken by the surviving appellants. In that view of the matter, this appeal as a whole has become incompetent and cannot proceed further. Consequently, this appeal as a whole, in the light of judicial pronouncements of the Hon’ble Apex Court, referred to above, is liable to be dismissed particularly in the background that the claims of the defendants- appellants herein with respect to the suit properties are joint and indivisible. It is ordered accordingly. 34. By an order dated 19.11.1984 passed by a Division Bench of this Court in the present First Appeal, while disposing of the petition filed on behalf of the plaintiff-original respondent No.1 for appointment of a receiver under Order 40, Rule 1 C.P.C., it was directed that during the pendency of this appeal, the appellants shall go on depositing Rs. 500/-(five hundred) only per month by the 21st in the next succeeding month in this Court. By the aforesaid order dated 19.11.1984, it was further directed that the amount so deposited by the appellants shall be available for withdrawal by the party ultimately succeeding in this appeal. It is not under dispute that in compliance of the aforesaid order dated 19.11.1984 the appellants have deposited the amount in this Court. 35. For the reasons recorded in the preceding paragraphs the whole appeal has been held to have become incompetent and has accordingly been dismissed. Therefore, the judgment and decree passed by the learned trial court stand affirmed. Consequently, the plaintiff-substituted respondent Nos.1(i) to 1(vii) are entitled to withdraw the amount so deposited by the appellants. 35. For the reasons recorded in the preceding paragraphs the whole appeal has been held to have become incompetent and has accordingly been dismissed. Therefore, the judgment and decree passed by the learned trial court stand affirmed. Consequently, the plaintiff-substituted respondent Nos.1(i) to 1(vii) are entitled to withdraw the amount so deposited by the appellants. The office is directed to take appropriate steps for payment of the aforesaid amount to the plaintiffs- substituted respondent Nos. 1(i) to 1(vii) without any unnecessary delay. 36. It goes without saying that all the interim orders passed earlier in the present First Appeal stand vacated/merged with the present judgment/order. Now, the learned court below shall be at liberty to proceed further in accordance with law for preparation of final decree, if not already prepared, and take all follow up actions as permissible under law. 37. Consequently, this First Appeal, as a whole, has to fail and is, accordingly, dismissed. However, in the peculiar facts of the present First Appeal, the parties are left to bear their own costs.