Research › Search › Judgment

Jharkhand High Court · body

2019 DIGILAW 580 (JHR)

Luisa Khariain v. Mostt. Beronica Khariain

2019-02-27

ANUBHA RAWAT CHOUDHARY

body2019
JUDGMENT I.A. No. 2861 of 2017 with I. A. No. 9452 of 2017 1. This interlocutory application being I.A. No. 2861 of 2017 has been filed by the appellant no. 3 for substitution of deceased Respondent No. 1. As per this interlocutory application ,during pendency of the instant Second Appeal Respondent No. 1 namely Most Beronica Khariain daughter of Late Guju Kharia died on 13.01.2017 leaving behind the following heirs:- (i) Bhaleria Kerketta @ Bhaleria Tete, Wife of Vinod Tete Resident of Village- Kachchu Pani Bhelwa Bera, Post Office- Targa, Police Station- Bansjor, District- Simdega. (ii) Ignasia Kerketta @ Ignasia Kujur, Wife of Edward Kujur, Resident of Village- Karaiguda, Post Office Kinkel, Police Station Kersai District- Simdega. 2. In this interlocutory application being I.A. No. 2861 of 2017, it has also been mentioned that Performa Respondent No. 2 namely Rajhni @ Rajina Khariain has also expired and a prayer has been made to delete the name of Rajhni @ Rajina Khariain from the cause title. Office is directed to delete the name of Respondent No. 2 namely Rajhni @ Rajina Khariain from the cause title. 3. Another interlocutory application being I.A. No. 9452 of 2017 has been filed by Julian Kerkette claiming to be son of the Respondent No. 1, by way of intervention, mentioning therein that he is the sole legal heir of deceased Respondent No. 1. 4. Accordingly, there is a dispute as to who are the legal heirs and successors of deceased Respondent no. 1. S. A. 542 of 2003 5. Counsel appearing on behalf of the intervener submits that on account of aforesaid dispute, the matter is required to be referred to the learned trial court in terms of provisions of Order 22 Rule 5 of the Code of Civil Procedure with a direction to try this question and to return the records together with evidence, if any recorded at such trial with its findings and reasons thereof, so that the Second Appeal can be disposed of by taking the same into consideration in determining the question. The counsel has referred to a judgment passed by Honble Supreme Court reported in AIR 2010 SC 897 (Dashrath Rao Kate v. Brij Mohan Srivastava). 6. The counsel has referred to a judgment passed by Honble Supreme Court reported in AIR 2010 SC 897 (Dashrath Rao Kate v. Brij Mohan Srivastava). 6. Considering the submissions made by the counsel for the intervener, this Court finds that there is a dispute as to who are the legal heirs and successors of deceased Respondent No. 1, which at the first instance is required to be tried by the trial Court, namely , Additional sub-judge, Gumla, who had decided Title Suit No. 23/3 of 1979-84. 7. Accordingly, office is directed to send the records to the learned court below for the aforesaid purpose of trial regarding the legal heirs and representatives of Respondent No. 1. The counsel for the intervener undertakes to appear before the learned court below on 28.03.2019. 8. The learned trial court is directed to return the records together with evidence recorded at such trial, its findings and reasons therefore, regarding legal heirs and representatives of Respondent No. 1 to this Court by 06.05.2019.