IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.914 of 2008 1. Ramautar Tanti 2. Krishnandan Tanti 3. Indradeo Tanti Sons of Late Adya Tanti 4. Kamli Devi, Daughter of Late Adya Tanti. 5. Prema Devi, Daughter of Late Adya Tanti. All residents of village-Dharhara P.O. & P.S.-Dharhara District-Munger. (Substituted heirs of sole plaintiff/Respondent no. 1 in F.A. No. 307 of 2000 vide order no. 10 dated(24.9.2001) (Not Party in the suit) ........................... Petitioner Versus 1. Sanjay Kumar @ Nirmal Kumar. 2. Sanjeet Kumar @ Suraj Kumar. Both sons of Late Bhola Mandal, resident of Village-Dharahra P.O.& P.S.- Dharhara District-Munger. 3. Punam Devi, daughter of Bhola Mandal. wife of Pradeep Kumar Vidyarthi resident of Kacchi Balihari, Coliery no. 10 P.O. and P.S.-Kasunda District-Dhanbad. 4. Kanchan Devi, daughter of Late Bhola Mandal, wife of Prabhat Kumar Singh, resident of Kacchi Balihari Coliery no. 10 P.O. & P.S.-Kusunda, district-Dhanbad. 5. Siyabati Devi, widow of Late Bhola Mandal, resident of village-Dharhara, P.O. & P.S.-Dharahara, District- Munger. (Substituted heirs of deceased sole appellant Bhola Mandal by order dated 8.4.2008 in F.A. No. 307 of 2000) ........................ Opposite Party 1st Party. 6. Smt. Amika Devi, wife of Sri Tapeshwar Singh, resident of village-Kasba Dharahara P.S. -Pargana Dharahara, district-Munger. (Defendant/Respondent no. 2 in court below) .......................... Opposite Party 2nd Party. 7. Shri Bijay Kumar Mandal, son of Shri Jagannath Mandal, resident of Kali Asthan Muksuspur Munger P.S.-Kasim Bazar Munger district-Munger. (Defendant/Respondent no. 3 in the court below) ............................ Opposite Party 3rd Party. ----------- 3 16/9/2009 Heard counsel for the petitioners. In the opinion of this Court the impugned order allowing substitution of the sole appellant after condoning the delay and setting aside abatement does not suffer from any jurisdictional error. The submission of learned counsel for the petitioner that such substitution should not have been allowed because the 2 right to sue did not survive on account of death of the sole appellant, has to be only noted for its being rejected. The appeal being continuation of the suit, if the suit was decreed in favour of the sole plaintiff Adya Tanti, the resultant appeal filed by Bhola Mandal defendant judgment debtor who had initially filed First Appeal No. 307/2002 before this Court which was subsequently transferred to the District Court on the issue of valuation and was pending before the A.D.J. Fast Track Court No. VI, Munger as S.T.A. No. 40 of 2006, on the date of death of Bhola Mandal i.e. 4.8.2007 it would be difficult to accept his heirs had been left with no right to sue. In that view of the matter, if the two sons and a daughter including two widows of Late Bhola Mandal had made a prayer for their substitution even after expiry of 90 days, the same could not have been rejected by the appellate court especially when it is found that the suit relating to land was decreed against Bhola Mandal. and this substituted heirs had a defined right in such land. It has to be noted that the original suit was filed by one Adya Tanti, father of the present petitioners for decree of title and recovery of possession in his favour and against Bhola Mandal on the basis of two sale deeds dated 22.4.1989 executed by defendant no.3 and also for grant of injunction as also declaration that the sale deed dated 17.12.1988 executed by Bhola Mandal in favour of Ambika Das was illegal and in-operative. That being the factual matrix, the heirs of Bhola Mandal had a definite subsisting 3 interest and thus a right to sue.. Once this position becomes clear, it would be quite difficult for this Court to now hold that the court below had committed any jurisdictional error in condoning the delay in filing of the substitution petition especially when it has noted by the court below that the sons of Late Bhola Mandal were residing in Bombay and were not aware of the pending appeal filed by Bhola Mandal and the two widows of Late Bhlola Mandal were wholly illiterate and thus could not take the steps for substitution in place of deceased husband. These specific findings of fact in any view of the matter cannot be disturbed by this Court and consequently, this Court must hold the impugned order allowing substitution of heirs of Bhola Mandal, opposite parties to this case, to be wholly justified and in the interest of justice. Consequently the order setting aside the abatement as a consequence of allowing the substitution petition also does not suffer from any error. That being so, this Court would find no infirmity much less jurisdictional error in the impugned order and consequently, this Civil Revision Application is dismissed. Abhay Kumar (Mihir Kumar Jha, J.)