IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14751 of 2001 ***** 1. Md.Ashfaque Alam son of Late Fakhrun Nissa wife of Late Azhar Ali. 2. Md. Ayub, son of - do – 3. Md. Shoaib Son of – do – 4. Md. Haji Gulfan son of – do – 5. Md. Zakir son of – do – 6. Aisha Khatoon daughter of Late Most. Bibi Fakrun Nissa Wife of Motiur Rahman. 7. Bibi Husna Ara daughter of Late Most. Bibi Fakrun Nissa Wife of Anisur Rahman. 8. Kausar Parvez. 9. Jhannu Khatoon wife of Md. Qamruz Zaman. 10. Pano Khatoon wife of Sabir. 11. Wajra Khatoon wife of Shamshad. Nos. 8 to 11 sons and daughters of Late Anisa Khatoon widow of Md. Nageemuddin. All residents of Village- Salepur Maheshpur, Police Station – Falka, District – Katihar. …. …. Petitioners Versus 1. The State of Bihar. 2. Sub Divisional Magistrate, Katihar. 3. Anchaladhikari, Falka, District-Katihar. 4. Chalitar Mandal. 5. Giro Mandal. 6. Nakchhatar Mandal, sons of Late Budhan Mandal. 7. Shankar Mandal, son of Late Bishan Mandal. 8. Chulhai Mandal son of Late Brahmi Mandal, All residents of Village – Govindpur, Diyara, P.S. Falka, District – Katihar. …. …. Respondents ----------- For the Petitioner : Mr. Najeeb Ahmad, Advocate Mr. Deepak Kumar Singh, Advocate Mr. Saba Ashfaque, Advocate ---------- 6. 15.1.2009. Petitioner challenges an order dated 7.2.2001 contained in Annexure-1 by virtue of which an appeal filed on behalf of the mother of the present petitioners in the proceeding under Section 48 D of the Bihar Tenancy Act, 1885 has been dismissed without giving proper opportunity to the legal heirs to place their case before the appellate authority. Besides - 2 - other submissions, learned counsel appearing on behalf of the petitioners submits that it is not in dispute that during the pendency of the appeal in question Fakhrun Nissa died leaving behind heir legal heirs. On the death of Fakhrun Nissa on 17.2.1997 petitioners filed an application for substitution on 3.3.1997 but no order came to be passed on the substitution petition on certain objects having been raised by the private respondent nos. 4 to 9. It is further stated categorically in paragraph 19 of the writ application that arguments have been heard on the substitution petition on 20.7.2000 but no order on the same was passed. Only a final order dated 7.2.2001 has been passed, which would show that the order has been passed against a dead person without keeping in mind the interest of the legal heirs. This according to the counsel for the petitioner is sufficient for interference with the order in question. Though detailed counter affidavit has been filed by the private respondent, where various facts have been asserted and alleged but they are silent on this aspect of the matter as to why the question of substitution had not been dealt with by the appellate authority separately or how could an order be passed against a dead person, which was to the full knowledge of the appellate authority. This Court is of the opinion that impugned Annexure-1 requires to be interfered. It is accordingly set aside and the matter is remanded back to the concerned authority with a direction that the question of substitution petition and the right of the legal heirs to be brought on record must be decided first and thereafter the appeal be decided on its merit. - 3 - The writ application is allowed with the above direction. Pawan/- (Ajay Kumar Tripathi, J.)