IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.190 of 2009 1.Indradeo Yadav. 2.Surajdeo Yadav. 3.Chandradeep Yadav. All Sons of Nathu Yadav. All R/o Village- Bishunpur, P.S.-Makhdumpur, P.O. Verka, District-Jehanabad. (Defendants-Appellant)-Petitioners. Versus 1.Kalawati Devi ,D/o Munshi Yadav and Wife of Ramashray Prasad, R/o Village- Dharnai Tola, Bishunpur, P.S.- Makhdumpur, District- Jehanabad. 2. Hiramani Devi, Daughter of Munshi Yadav and Wife of Chatrapatti Yadav, Resident of Village- Dharnai Tola, Bishunpur, P.S.- Makhdumpur, District- Jehanabad At present resident of village- Shakir Bigha, P.S.- Makhdumpur, District- Jehanabad. ------(Heirs of Plaintiff-Respondents)-Opposite Parties. ----------- 06. 27.09.2011 Heard the learned counsel appearing on behalf of the petitioners and learned counsel appearing on behalf of the opposite parties. This Civil revision application has been filed against the order dated 08.12.2008 passed by Additional District Judge I, Jehanabad in Miscellaneous Appeal No. 05/06/01/08 dismissing the appeal which had been 2 preferred against the order dated 18.08.2006 passed in Misc.Case No.01/99/04/99 by Additional Munsif I, Jehanabad setting aside the order of abatement in the suit. The title suit no. 147/1995 has been filed by Mungeshwari Devi as sole plaintiff for declaration that the plaintiff had a charge of maintenance over the suit property and further for declaration that the gift deed dated 05.11.1981 executed by defendant no.4 is illegal and not binding upon the plaintiffs. On 26.11.1988, the learned Munsif allowed the petition filed by the defendant holding that the sole plaintiff died on 18.07.1998 and the suit abated for want of substitution of her two daughters who were her heirs. Later on a petition was filed by the two daughters of the sole plaintiff praying for setting aside the abatement on the specific assertion that the sole plaintiff Mungeswari Devi died on 23.10.1998 and not on 18.07.1998 as wrongly stated by the defendant. The Misc.Case No. 01/99/04/99 was initiated on the basis of the petition filed by the two daughters and after hearing the parties and considering their evidence, the learned Munsif accepted the case of the two daughters that the sole plaintiff died on 23.10.1998 and not on 18.07.1998 as 3 claimed by the defendants and on the basis of this finding the abatement was set aside and the suit was restored to its original file by order dated 18.08.2006 allowing the miscellaneous case. It appears that thereafter the defendants filed Misc. Appeal No. 05/06/01/08 against the aforesaid order dated 18.08.2006. Although such appeal was not maintainable as the order setting aside the abatement is not appealable but nonetheless the appellate court heard the appeal on merits and dismissed the same concurring with the finding of the learned Munsif that the sole plaintiff Mungeshwari Devi died on 23.10.1998. This appellate order dated 08.12.2008 has been assailed in this revision application by the defendants of the suit. From the facts and findings recorded by both the courts below it is clear that both the courts have concurrently concluded that the sole plaintiff Mungeshwari Devi died on 23.10.1998 and not on 18.07.1998 as had been asserted by the defendant. The Miscellaneous appeal was not maintainable in law but the fact remains that it was the defendant petitioners who had filed the appeal, got the finding regarding the date of death 4 of the sole plaintiff reexamined by the appellate court but the appellate judgment has gone against them. It has been contended on behalf of the petitioners that both the courts below misappreciated the evidence on record and has ignored the fact that there was no material and valid evidence to establish the date of death of the sole plaintiff. However, the perusal of the impugned orders reveal that the parties have led evidence in support of their respective cases and the finding has been arrived at by both the courts after full consideration of the evidence on record. There is no illegality or material irregularity in recording the said finding. The contention that the appellate court had no jurisdiction to entertain the appeal has no force in the facts and circumstances of this case. In a decision of the Hon’ble Supreme Court reported in 1988(1) SCC 40 (Moh. Swalleh Vs. 3rd Additional District Judge) in similar circumstances, when the order of the District Judge had been found to be without jurisdiction but correct on merits, the adoption of the said order of the District Judge as its own by the High Court had been approved. In view of the principles discussed in the aforesaid judgment of the apex court it would not be in the interest of the justice to set 5 aside the impugned order for want of jurisdiction even when it appears to be correct on merits. For the foregoing reasons, there is no merit in this revision application. The revision application is, accordingly, dismissed. Nitesh ( V. Nath, J.)