Appeal from Appellate Decree 75 of 1986 ----------- Against the judgment and decree dated 14.10.1985 passed in Title Appeal no.27/3 of 1985 by the learned Additional District Judge IV, Munger, dismissing the judgment and decree dated 14.09.1983 passed by the learned Subordinate Judge , Khagaria in Title Suit no.103 of 1977 --------------- 1. (a) Bandelal Paswan (b) Nandlal Paswan (c) Mulan Paswan (d) Sulem Paswan (e) Mostt. Maha Devi (f) Chandan Devi 2. Mostt. Fuchia Devi @ Fudia Devi w/o Sukhdeo Paswan 3. Hare Ram Prasad 4. Raja Ram Prasad Both Minor sons of late Sukhdeo Paswan 5. Urmial Devi D/o late Sukhdeo Paswan 6. Sita Devi @ Sumitra Devi d/o late Sukhdeo Paswan 7. Musaharu Paswan 8. Garib Paswan 9. Bhola Paswan sons of Dukha Paswan 10. Lala @ Lala Paswan 11. Shankar Paswan son of Sahdeo Paswan 12. Chatpati Paswan son of Ramautar Paswan All resident of Sabalpur P.S.Khagaria Dist. Munger Defendants Ist party- Appellants- Appellants Versus 1. Ishwar Prasad Sahu s/o late Gena Sahu 2. (a) Kaushalia Devi (b)Bhyia Devi (c) Bina Devi 3. (i) Gholjhu Sah @ Vijoy Sah (ii) Sanjay Sah (iii)Khanna Sah (iv) Sbobha Devi 4. Rajendra Prasd Sahu 5. Arjun Kumar 6. Madan Kumar sons of Ishwar Prasad Sahu 7. Ram Balal Sahu 8. Raj Dular Sahu 9. Ram Sewak Sahu , Minor sons of Ishwar Prasad Sahu 10. Narain Prasad Sahu 11. Brahamdeo Kumar 12. Ramdeo Sahu 13. Shyamdeo Sahu lson of Bishwanath Sahu 14. Birendra Kumar 15. Anandi Kumar sons of Ram Kishun Sahu 16. Ajit Kumar son of Rajendra Prasad Sahu 17. Anil Kumar 18. Sushil Kumar minor sons of Rajendra Prasad Sahu All resident of Village Marar P.S.Khagaria Dist. Munger Plaintiffs – Respondents-Respondents Ist set 19. Acho Paswan 20. Puri Paswan @ Punit Kumar son of Acho Paswan 21. Parkash Paswan son of Acho Paswan 22. Mangan Paswan so of Ishwari Paswan - 2 - 23. Megha Paswan son of Mahabir Paswan All resident of Village Sabalpur P.S.Khagaria Dist. Munger 24. Prithivi Singh son of Jitendra Narayan Singh resident of Village Marar P.S.Khagaria Dist. Munger 25. Medini Prasad son of Sri Siri Prasad resident of Nawtolia P.S.Khagaria Dist. Munger Defendants 2nd Party – Respondents-Respondents 2nd set --------------- For the appellants: Mr V. Nath, Advocate Mr Mauaj Madhav, Advocate For respondent no.1: Mr S.S.Dewedi, Sr. Advocate Mr. Ranjan Kumar Dubey, Advocate ------------------- P R E S E N T THE HON’BLE MR JUSTICE S. NAYER HUSSAIN S.N. Hussain, J Heard learned counsel for appellants and learned counsel for respondent no.1. 2. This second appeal has been filed by defendant Ist party- appellants-appellants challenging the judgments and decree of both the learned courts below. 3. The matter arises out of Title Suit no.103 of 1977 which was filed by the plaintiffs- respondents-respondents Ist set for declaration of their title and confirmation of possession over Schedule 3 land and also for recovery of possession with respect to Schedules 2 and 4 lands detailed in the plaint as well as for other ancillary reliefs. The said title suit was decreed on contest by the learned Subordinate Judge, Khagaria vide his judgment and decree dated 14.09.1983. 4. Against the aforesaid judgment and decree of the learned trial court, the defendants Ist party- appellants filed Title Appeal no.27/3 of 1985 which was dismissed on contest by the learned Additional District Judge IV, Munger, vide his judgment and decree dated 14.10.1985. 5. Against the aforesaid judgments and decree of the learned courts below, the defendants-Ist party filed the instant Second Appeal No. 75 of 1986 which was admitted on 05.11.1986 by a Bench of this Court on one - 3 - substantial question of law, namely- “(i) The learned courts below completely failed to appreciate that the appellants were privileged tenants?” 6. When hearing of the instant second appeal started learned counsel for the appellants raises another question of law on 22.02.2010 by way of filing a paper in this court which is as follows:- “(ii) Whether the plaintiffs can be granted the relief for declaration of title over the suit land when admittedly the suit land is non-agricultural land and the plaintiffs claim to have obtained the same by way of settlement by grant of receipt by the ex-landlord instead of a registered deed of lease as required under section 107 of the Transfer of Property Act?” 7. On the other hand learned counsel for the plaintiffs- respondents filed interlocutory application dated 22.02.2010 stating that the entire second appeal has abated. Appellant no.7 Musahru Paswan died in September, 2005; Appellant no.9 Bhola Paswan died in August, 2007; Respondent no.1 Ishwar Prasad Sahu died in December, 2007 and Respondent no.11 Brahmadeo Kumar died in November, 2001 but their heirs having not been substituted by the appellants within the prescribed time the instant second appeal has abated as a whole. 8. In response to the said interlocutory application, the appellants filed a reply rejoinder on 03.03.2010 stating that when the respondents had knowledge of the aforesaid deaths, it was the duty of the respondents under Order XXII Rule 10(A) of the Code of Civil Procedure to inform the court about the same but the said provision was not complied, their said interlocutory application can not be allowed and moreover the other appellants and the respondents are already on record. Hence there is no question of abatement of the instant second appeal. 9. In addition to the aforesaid reply the appellants filed I.A. No. 2101 of 2010 on 03.03.2010 for substitution of the heirs of the deceased parties to the second appeal stating as follows:- - 4 - (a) Appellant no.7 Musaharu Paswan died in September,2005 leaving behind his widow, two married daughters and two minor children as his heirs and legal representatives fully detailed in paragraph 2 of the interlocutory application; (b) Appellant no.9 Bhola Paswan died in August,2007 leaving behind a widow, and a daughter as his heirs and legal representatives fully detailed in paragraph 1 of the interlocutory application; (c) Respondent no.1 Ishwar Prasad died on 26.12.2007 leaving behind two major sons and three minor sons as his heirs and legal representatives fully detailed in paragraph 6 of the interlocutory application and they are already on record as respondent nos. 5 to 9 and hence name of respondent no.1 has to be expunged; (d) Respondent no.11 Brahmdeo Kumar died on 26.11.2001 leaving behind a widow, three sons as his heirs and legal representatives fully detailed in paragraph 7 of the interlocutory application; (e) A prayer for setting aside abatement was also made in the said interlocutory application. 10. I.A. No.2100 of 2010 was also filed on behalf of the appellants on 03.03.2010 for condoning delay in the filing of the application for substitution bearing I.A. No. 2101 of 2010. Learned counsel for the appellants submits that the appellants are poor, illiterate and rustic persons, not conversant with law and having no feeling of urgency with respect to the matter of substitution. It was also claimed that Bhola Paswan was looking after the second appeal whereas other appellants had gone outside the State for earning their livelihood and hence after the death of Bhola Paswan no one could look after the second appeal due to which the application for substitution could not be filed earlier. 11. On the basis of the admitted facts, let name of - 5 - respondent no.1 Ishwar Prasad Sahu be deleted from the record of the second appeal as all his heirs are already on record as respondent nos. 5 to 9 and hence there is no question of any abatement or delay with respect to him. 12. However, after considering the arguments of the parties as well as materials on record, it can not be disputed that appellant no.7- Musaharu Paswan and appellant no.9- Bhola Paswan were contesting defendant nos. 4 and 6 in the suit and had filed title appeal as appellant nos. 7 and 9 along with other defendants whereas respondent no.11 Brahamdeo Kumar was one of the plaintiffs ,namely, plaintiff no.11 in the suit and was contesting respondent no.11 in the title appeal and hence all the aforesaid three persons were necessary parties for deciding the suit, title appeal and the instant second appeal. 13. So far the plea of learned counsel for the appellants with regard to the appellants being poor, illiterate and rustic persons is concerned, the law is well settled that the appellants can not take such plea as their sheild to avoid compliance of the specific requirement under law. Furthermore, when appellant no.1, respondent nos.2 and 3 had died during the pendency of the instant appeal, it were these appellants who had filed application for substitution of their heirs which were duly allowed. Hence such plea of the appellants is absolutely frivolous. 14. So far other pleas of the appellants that appellant no.9- Bhola Paswan was looking after the case on behalf of other appellants and due to his death the delay has been caused is concerned, it is quite apparent that the said Bhola Paswan died in August, 2007 whereas appellant no.7 Musharu Pawan died much earlier in September,2005 and respondent no.11 Brahamdeo Kumar died in November,2005. Hence it is quite apparent that delay had been caused earlier and not only after the death of appellant no.9- Bhola Paswan. Furthermore, if appellant no.9- Bhola Paswan had also gone - 6 - outside the State to earn his livelihood, there must be someone to look after the case and if no one was left to look after the case, it showed clear negligence on the part of the appellants who were twelve in number. This negligence of the appellants is also apparent from the fact that the date of death of appellant no.7 Musharu Pawan has not been given in the aforesaid interlocutory application for substitution although vakalatnama has been filed on behalf of children of the said appellant no.7. In the aforesaid facts and circumstances and considering the specific facts of the case as well as relevant provisions of law, it is quite apparent that this second appeal has abated against appellant nos.7 and 9 as well as respondent no.11. 15. Furthermore, since respondent Ist set including deceased respondent no.11, Brahamdeo Kumar filed the suit jointly for common relief which was decreed and since appellant nos. 7 and 9 who were contesting defendants and had jointly filed title appeal against the judgment and decree of the trial court as also the instant second appeal, abatement and dismissal of the second appeal against them would consequentially result upon abatement of the entire second appeal. Accordingly, this second appeal having abated as a whole, is dismissed as such in its entirety. (S.N.Hussain, J) The Patna High Court The11th March, 2010 Shahid/ NAFR.