IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.524 of 2007 1. Birendra Prasad, son of Late Sitaram Sah, 2. Pramod Kumar, son of Late Sitaram Sah, both residents of Mohalla-Gudari Bazar, Gopalganj, Ward No.7, P.O. and P.S. Gopalganj, District Gopalganj. ……………..Defendants-Petitioners. Versus 1. Vinod Kumar, son of Late Sitaram Sah, resident of Mohalla-Gudari Bazar, Gopalganj, Ward No.7, P.O. and P.S. Gopalganj, District Gopalganj. 2. Smt. Kamala Devi, W/o Late Jagdish Prasad and D/o Sitaram Sah, resident of Sonartoli, P.O.and P.S. Siwan, District Siwan, at present Gudari Bazar, P.O. and P.S. Gopalganj, District Gopalganj. 3. Sudha Devi, widow of Late Bhagwan Prasad and D/o Late Sitaram Sah, R/o Station Road, Masrak, P.O. and P.S. Mashrak, District Saran. 4. Shobha Devi, W/o Vijay Kumar Prasad and D/o Late Sitaram Sah, resident of village Masaurhi, P.O. and P.S. Masaurhi, District Patna. …….Defendant nos.3 to 6-Opposite parties. For the petitioners : Ms. Shashi Bala Verma, Advocate. For the opposite parties : None. 02/ 02.09.2009 Heard learned counsel for the petitioners. 2. This civil revision has been filed by defendants- petitioners challenging order dated 21.12.2006 by which the learned Subordinate Judge-I, Gopalganj, allowed the application filed by defendant no.3 Vinod Kumar for being transposed in place of his mother the deceased sole plaintiff Jhalara Kuer in Title Suit No.322 of 2003. 3. The aforesaid suit was filed by the deceased sole plaintiff Jhalara Kuer against her three sons and three daughters, who were all defendants, for partition of her 7/24th share in the suit property and to declare the decree of compromise passed in the 2 earlier Partition Suit No.70 of 2000 to be void ab-initio and for other ancillary reliefs. 4. Admittedly the said plaintiff Jhalara Kuer died on 15.01.2004, whereafter only defendant no.3 Vinod Kumar (opposite party no.1) filed an application on 22.01.2004 for being substituted/transposed in place of her mother, namely the original plaintiff. No other defendants, who were also children of the plaintiff filed any application for substitution/transposition. The said application for transposition has been allowed by the learned court below vide its order dated 21.12.2006, which is under challenge in the instant civil revision. 5. From the arguments as well as from the materials on record, it transpires that the defendants-petitioners have challenged the said order on the ground that the earlier Partition Suit No.70 of 2000 was decreed on the basis of compromise with the consent of all the parties including defendant no.3 and hence there was no occasion for the court to transpose him in place of the deceased plaintiff. 6. It is quiet apparent that the said point was equally applicable against the original plaintiff also, but although the aforesaid title suit has been filed in the year 2003 and several years have passed but the defendants-petitioners have not filed any application in the title suit raising the said point as a preliminary issue. 7. Furthermore, the said compromise decree passed 3 in the earlier partition suit being itself challenged in the instant title suit, there was no occasion for the learned court below to refuse the application of defendant no.3 to be transposed in place of her mother, specially in the circumstances when the other children of the original plaintiff had not filed any such application. 8. In the aforesaid facts and circumstances, this court does not find any illegality or jurisdictional error in the impugned order of the learned court below. Accordingly, this civil revision is dismissed. harish/ ( S. N. Hussain, J. )