1 IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.52 of 2000 1. Phekhan Singh 2. Arjun Singh both sons of Late Rajendra Singh 3. Smt Khubsurti Devi W/o Phekhan Singh 4. Smt Nageshwari Devi W/o Arjun Singh All resident of Village Rohua Apuch P.S. Sadar Munsiti Dist. Muzaffarpur At present residing in Mohalla Mohammadpur Kazi Miscot Ramana town Muzaffarpur P.S. Kazi Mohammadpur Dist. Muzaffarpur Defendants- Appellants- Appellants Versus 1. Awadhesh Kumar Srivastava 2. Sri Krishna Kumar Srivastava 3. Premkumar Srivastava All sons of Later Surajdeo Prasad Srivastava resident of Mohalla Noorullahpur town Muzaffarpur P.O. Ramana P.S. Quazimohammadpur Dist. Muzaffarpur Plaintiffs-Respondents-Respondents ----------------------- For the appellants: Mr Kamala Prasad Rai, Advocate For the respondents: None ------------------- 04 21.05.2009 Heard learned counsel for the appellants. 2. This second appeal has been filed by the defendants- appellants-appellants challenging the judgments and decree of both the learned courts below. 3. The matter arises out of Title Suit no.40 of 1980(67/1982) which was filed by the plaintiff-respondent-respondent for declaration of title and recovery of possession of the suit land and for other ancillary reliefs. 4. The said title suit was decreed on contest with cost by the learned Munsif West, Muzaffarpur vide his judgment and decree dated 13.12. 1982. Against the aforesaid judgment and decree of the trial court, the defendants filed Title Appeal no.5 of 1983 which was dismissed by the learned Additional District Judge I, Muzaffarpur, vide his judgment and decree dated 25.11.1999. 2 5. From the materials on record including the impugned judgments and decree of both the learned courts below, it transpires that the learned trial court after framing nine relevant issues considered each and every issue in the light of the pleadings and evidence of both the parties and thereafter rightly came to the conclusion that the plaintiff has been able to prove his title over Schedule I land of the plaint and was entitled for recovery of possession over the same on the basis of his registered sale deed dated 04.06.1973. 6. It further transpires from the judgment of the learned court of appeal below that the sole plaintiff-respondent who was respondent in the title appeal namely Surajdeo Prasad Srivastava died in the year 1991 but no application for substitution of his heir(s) was filed by the appellants even when the learned counsel for the respondents filed a petition on 02.08.1995 regarding abatement of the appeal due to his death copy of which was also served upon learned counsel for the appellants and no step was taken in that regard except filing of objection petition dated 29.08.1995 but even thereafter no application for substitute was made till 11.10.1999. 7. Learned counsel for the appellants submits that on 11.10.1999 the appellants filed an application for substitution in the lower appellate court but he could neither produce any copy of the said application nor say as to whether there was any prayer/ petition for setting aside abatement specially when death was in the year 1991. In the said circumstances, the learned court of appeal below was justified in dismissing the title appeal as abated by the impugned judgment and decree. 3 8. In the aforesaid circumstance, this Court does not find any illegality in the impugned judgments and decree of the learned courts below, nor does it find any substantial question of law involved in the instant second appeal which is accordingly dismissed, at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. (S.N.Hussain,J) shahid