IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.43 of 2004 SMT.SITA DEVI (since dead), wife of Sri Jainath Prasad, Resident of Mohalla-Kazi Mohammadpur, Naya Tola, P.S.-Kazi Mohammadpur, P.O.-Muzaffarpur, District-Muzaffarpur. ……Plaintiff/Appellant/Appellant Versus 1. TAHAL RAM MUTREJA, Son of Sri Shyam Das Mutreja. 2. Smt. Raj Kumari Mutreja, wife of Tahal Ram Mutreja. Both are residents of Mohalla- Mohammadpur Kazi, Naya Tola, P.S.- Mohammadpur Kazi, P.O.-Muzaffarpur, District-Muzaffarpur. ….Defendants/Respondents/Respondents 1st Set 3. Smt. Jaimala Thakur, wife of Sri Ashok Kumar Thakur. 4. Smt. Anima Thakur, Wife of Shri Shushil Kumar Thakur. Both are residents of Village-Manjhauli Pachdauli, P.S. Sakar, District-Muzaffarpur. Presently residing at Mohalla- Mohammadpur Kazi, Naya Tola, P.S.- Mohammadpur Kazi, P.O.-Muzaffarpur, District-Muzaffarpur. ……..Intervenors/Respondents 2nd Set/Respondents with SA No.44 of 2004 SMT.SITA DEVI (Since Dead), wife of Sri Jainath Prasad, Resident of Mohalla-Kazi Mohammadpur, Naya Tola, P.S.-Kazi Mohammadpur, P.O.-Muzaffarpur, District-Muzaffarpur. …..Defendant/Appellant/Appellant Versus 1. TAHAL RAM MUTREJA, Son of Sri Shyam Das Mutreja. 2. Smt. Raj Kumari Mutreja, wife of Tahal Ram Mutreja. Both are residents of Mohalla- Mohammadpur Kazi, Naya Tola, P.S.- Mohammadpur Kazi, P.O.-Muzaffarpur, District-Muzaffarpur. ….Plaintiffs/Respondents/Respondents 1st Set 3. Smt. Jaimala Thakur, wife of Sri Ashok Kumar Thakur. 4. Smt. Anima Thakur, Wife of Shri Shushil Kumar Thakur. Both are residents of Mohalla-Mohammadpur Kazi, Naya Tola, P.S.- Mohammadpur Kazi, P.O.-Muzaffarpur, District-Muzaffarpur. ……..Intervenors/Respondents 2nd Set/Respondents ----------- 13/ 03.05.2011 Heard. 2 2. Both the Second Appeals have been filed against the common judgment and decree of affirmation. The plaintiff-appellant herein in Second Appeal No.43 of 2004 brought Title Suit No.163 of 1973 seeking a declaration that the disputed portion of land demarcated by the walls belongs to the plaintiff-Sita Devi, and she is fully entitled to raise the demarcating walls to any height. The plaintiffs- respondent 1st set herein in Second Appeal No. 44 of 2004 brought Title Suit No.216 of 1973 for declaration of their right, title and confirmation of possession, and in alternative for recovery of possession over the suit land. Plaintiff of Title Suit No.163 of 1973 was defendant in Title Suit No.216 of 1973, whereas plaintiffs of Title Suit No.216 of 1973 were defendants in Title Suit No.163 of 1973. In both the title suits dispute between the parties was with respect to same and common land measuring about 5½ dhurs only. Both the title suits were pending in the same court and were, therefore, tried and decided together. 3. Both the suits were contested by the parties. Oral and documentary evidence were led by 3 the plaintiff as also by the defendants in support of their respective cases. After hearing the parties and considering all the materials available on record, the learned trial court dismissed Title Suit No. 163 of 1973with costs, but decreed Title Suit No. 216 of 1973 with costs, by a common judgment and decree dated 13.05.1985. 4. Being aggrieved by the aforesaid judgment and decree, the present appellant preferred Title Appeal No.35 of 1985 and 36 of 1985, which were heard together and by a common judgment and decree dated 07.02.2004 were dismissed, which is under challenge in these two Second Appeals. 5. Apparently, there has been concurrent finding of facts by learned courts below rejecting the claim of the appellant with respect to small area of suit land measuring about 5½ dhurs only. Litigation between the parties is pending since 1973 i.e. for about last 38 years. Lis must come to an end between the parties at some point of time. 6. This Court finds that there is major defect about the maintainability of both the Second Appeals. The sole appellant, namely, Smt. Sita Devi 4 died on 01.12.2006. Till date, no petition has been filed by her legal heirs and representatives seeking their substitution in place of sole deceased appellant and seeking further permission from this Court to prosecute the present Second Appeal. Consequently, both the Second Appeals have abated, after expiry of statutory period of limitation, by operation of law. 7. It appears that I.A. No.4274 of 2010 and I.A. No.4732 of 2010 were filed in Second Appeal No.43 of 2004 and Second Appeal No.44 of 2004 respectively purportedly on behalf of the appellant on 29.04.2010 and 19.05.2010 respectively disclosing therein that sole appellant has died on 01.12.2006 leaving behind her legal heirs and representatives, details of whom have been given in Paragraph-2 of the said interlocutory applications. The question arises that once the sole appellant was dead, whether any application could have been filed on behalf of the such dead person. If any substitution petition was required to be filed, then that should have been filed on behalf of the legal heirs and representatives of deceased appellant 5 seeking their substitution in place of sole appellant and seeking permission from the Court to prosecute the present Second Appeal. Admittedly, that has not been done in the present case. Consequently, such interlocutory applications filed on behalf of the dead person cannot be taken into consideration by this Court. 8. In the aforesaid facts and circumstances, particularly in view of concurrent finding of facts recorded by two courts below against the claim of deceased sole appellant with respect to a very small area of land, and in view of facts, the sole appellant died long ago on 01.12.2006, without there being any proper petition filed by her legal heirs and representatives seeking their substitution in place of deceased-appellant, these appeals have to fail. Accordingly, both the Second Appeals stand dismissed. No costs. Anjani/ ( Birendra Prasad Verma, J.)