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2019 DIGILAW 282 (CAL)

KHODAIJA KHATOON v. MAHMUNNESSA BIBI

2019-02-27

BISWAJIT BASU

body2019
JUDGMENT : BISWAJIT BASU, J. 1. The opposite parties filed a suit being Title Suit No. 72 of 2002 in the 3rd Court of learned Civil Judge (Junior Division), Alipore Dist. 24 Parganas (South) against the defendant/petitioner, inter alia, praying for a decree that the plaintiffs predecessor-in-interest Sk. Naiyamat, now deceased acquired right, title and interest over the suit property by adverse possession and his interest has been vested to the plaintiffs. 2. The petitioner in the said suit has prayed for a decree of eviction of the plaintiffs and their men and agents from a portion of the suit property being premises No. 9C, Bhukailash Road, Kol. 700023, describing the plaintiffs as the trespassers therein by way of counterclaim. 3. The learned Trial Judge by the judgment and decree dated September 30, 2010 dismissed the suit but decreed the counterclaim by directing the plaintiff to vacate the suit premises within sixty days from the date of the said decree. 4. The plaintiffs/opposite parties being aggrieved and dissatisfied with the said judgment and decree passed in the said suit preferred Title Appeal No. 3 of 2001. The said appeal is pending disposal before the 6th Court learned Civil Judge (Senior Division), Alipore Dist. 24 Parganas (South). The appellant No. 2 died during the pendency of the said appeal but steps were not taken by the rest of the appellants to substitute the legal heirs and representatives of the said deceased appellant No. 2 in the said appeal. 5. The petitioner contended before the learned Appeal Court below that due to non-substitution of the legal heirs and representatives of the deceased appellant No. 2 the appeal has abated as a whole. The learned Judge of the Appeal Court below turned down the said contention of the petitioner by the Order No. 50 dated April 28, 2017 holding that on the death of appellant No. 2 right to sue survives upon other appellants as such the appeal has not abated as a whole. 6. The petitioner has assailed the said order in the present revisional application. Mr. 6. The petitioner has assailed the said order in the present revisional application. Mr. Chakrabarty, learned advocate appearing on behalf of the petitioner submits that admittedly on the death of appellant No. 2 the other appellants did not take any step to substitute legal heirs and representatives of the said deceased appellant in the appeal and on their such failure the entire appeal stands abated inasmuch as the appellants in the suit, being the plaintiffs have prayed for a decree of declaration of title over the suit property and such a decree is not divisible. 7. Mr. Manna, learned advocate appearing on behalf of the opposite parties submits that the opposite parties in the suit has prayed for a decree of declaration of such a nature to which the surviving plaintiffs are entitled to even in the absence of the legal heirs and representatives of the appellant No. 2. He submits that it has rightly been held by the learned Judge of the Appeal Court below that the appeal has abated against the appellant No.2 but has not abated as a whole. Heard learned advocate for the parties. Perused the materials on record. 8. Mr. Manna, learned advocate appearing on behalf of the opposite parties could not definitely apprise this Court whether the Title Appeal No. 3 of 2011 filed by his clients is directed against the decree dismissing the suit or it is directed against the decree allowing the counterclaim of the defendant. However, on perusal of the plaint particularly the relief sought for in the suit it appears that the plaintiffs in the suit are praying for a decree that their predecessor-in-interest Sk. Niyamat(since deceased) acquired right, title and interest over the suit property by way of adverse possession. The plaintiffs are therefore, claiming the right, title and interest over the suit property which according to them matured in favour of their predecessor in title. The plaintiffs since are claiming a title over the suit property through their predecessor-in-interest each of the plaintiffs are entitled to protect their said right, title and interest independently as such on the failure to bring the legal heirs and representatives of one of the deceased plaintiffs/appellants on record of the said appeal the entire appeal cannot abate. 9. This Court, therefore, does not find any illegality and/or infirmity in the order impugned C.O. 2900 of 2017 is dismissed. 9. This Court, therefore, does not find any illegality and/or infirmity in the order impugned C.O. 2900 of 2017 is dismissed. No order as to costs. Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.