IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.101 of 1995 1(a). Dhanrajo Devi (Kuar) Wife of Late Ramrup Ojha 1(b). Chandra Shekhar Ojha, son of Late Ramrup Ojha, 1©. Pramod Ojha, son of Late Ramrup Ojha, 1(d) Dharmsheela Devi, daughter of Late Ramrup Ojha. 1(e). Asha Devi, daughter of Late Ramrup Ojha 2(a). Most. Dulari Kuar, wife of Late Kedar Ojha. 2(b) Surendra Ojha, son of Late Kedar Ojha 2© Indu Bhushan Ojha, son of Late Kedar Ojha. 2(d) Geeta Devi, daughter of Late Kedar Ojha. 2(e) Indrabala Devi, daughter of Late Kedar Ojha. 3. Yamuna Ojha. All residents of Village-Chilbili, P.S. Itarhi, District- Bhojpur……………………..Defendants/Appellants. Versus 1. Lallan Ojha 2. Bijoy Shankar Ojha 3. Birendra Ojha. 4. Chandra Bhushan Ojha. All are sons of Ram Beyas Ojha. 5. Indrasni Devi, widow of Late Ram Beyas Ojha. 6. Smt. Lalita Devi 7. Smt. Vidyadhari Devi, Both are daughters of Late Ram Beyas Ojha. All residents of Village-Chilbili, P.S. Itarhi, District-Bhojpur………………Plaintiffs/Respondents. For the appellants :- Mr. Najmul Hoda, Advocate. Mr. Anirudh Mishra., Advocate. ----------- 22. 10.01.2011. This miscellaneous appeal is directed against the order dated 06. 05. 1995 passed by the Additional District Judge, Buxar, in Title Appeal No. 74 of 1986 for condoning the delay for filing the substitution petition and consequently rejecting the substitution petition with petition for setting aside the abatement and consequently holding that under the circumstances the appeal as stands abated as a whole. 2. From perusal of the record, it appears that 2 plaintiffs have filed a suit for declaration of title and confirmation of possession and in alternative recovery of possession. The suit was decreed against the said judgment and decree and an appeal was filed. During the pendency of the appeal, a petition was filed by the learned counsel for the respondent on 20. 02. 1995 that Ram Beyas Ojha, respondent died on 19. 04. 1994 leaving behind his sons Lallan Ojha, BijayShankar Ojha, Birendra Ojha, Chandra Bhushan Ojha and widow Indrasni Devi. The appellant thereafter, filed a substitution petition asserting that two sons of said Ram Beyan Ojha namely, Lallan Ojha and Bijay Shankar Ojha are already on record and prayed for substitution of remaining two sons and one widow besides two daughters Smt. Lalita Devi and Vidyadhari Devi. A petition for condonation of delay was also filed on 23. 02. 1995, making out a ground that the appellant had no knowledge about the death respondent Ram Beyas Ojha and have learnt for first time on 20.02. 1995. 3. The appellant filed rejoinder challenging the averments and asserting that appellant has knowledge and even having knowledge not took steps for substituting the legal heirs within time and hence appeal has abated. 3 4. However, lower appellate court held that admitted facts that Ram Beyas Ojha died on 19. 04. 1994 and held that in view of evidence it appears that house of both parties are adjoining and defence disbelieve the plea that defendant learnt for the first the first time and hence rejected the petition for condoning the delay for filing the limitation petition. However, second line of the argument before lower appellate court that since two sons of the deceased respondent Ram Beyas Ojha are already on record and hence there can not be any abatement of the appeal and in this condonation petition learned counsel for the appellant in the lower appellate court relied upon decision in A.I.R. 1964 Patna page 438 and A.I.R. 1965 S.C. 1049 (b). However, two decisions were distinguished by the lower appellate court that in decision reported in 1964 Patna, all the heirs of the deceased were already on record and hence no petition for substitution was required and hence ratio decided in decision reported in 1964, Patna, is not applicable. Further taking into consideration decision reported in 1965 Supreme Court, learned lower appellate court held that under the facts and circumstances of the case reported in 1965 S.C. petition for substitution was filed within time and some of the heirs of the deceased were brought on record 4 within time, but the appellant could not bring all the heirs of the deceased on record whom he could not know even after due diligence and in that case it was observed by the Hon'ble Supreme Court that the appeal could not abate and it was observed that " in a case where the person brought on record is a legal representative be considered that it would be consonant with justice and principle that in the absence of fraud or collusion, the bringing on record of such a legal representative is sufficient to prevent the suit or the appeal from abating". Hence held that in the present facts and circumstances of the case, it is not a fact that appellant filed a petition for substitution in time but could not bring all the heirs on record even after due diligence and hence decision reported in 1965 A.I.R. S.C.1049 is not applicable. 5. Further held that learned lawyer for the respondent has argued that the appellant having full knowledge of the death of the deceased did not file a petition and therefore, whole appeal has abated relying upon decision reported in A.I.R. 1980 Patna, page 285. 6. Learned counsel for the appellant however, contended that if the deceased respondent died and two of the sons are already on record and hence deceased was represented and has contended 5 that all the heirs of the deceased defendant were already on record, the question for abatement of the suit as a whole does not arise for which relied upon decision reported in 1981 PLJR page 533, 1998 (2) PLJR page 543, 1996 SC, 1964 (Patna) and 1965 S.C 1049. Hence question remained that Respondent Ram Beyas Ojha died, though two of his sons were on record and substitution petition filed for substituting rest of the heirs i.e. rest of the two sons, two daughters and widow and hence question for consideration the appeal abate for non filing a substitution petition within time for substitution of the rest of two sons and two daughters. 7. However, decision reported in P.L.JR. 1981 page 533, the facts in the case that suit was filed for declaration of title and confirmation of possession of suit property. The suit decreed. An appeal filed by the defendants and during pendency, appellant no. 1 died. However, substitution petition filed within time. However, facts remained that two sons of the appellant were on record as appellant nos. 2 and 3 and the heirs sought to be substituted were widow and daughter. The application for substitution of heirs unfortunately stood rejected for non-compliance of the peremptory order and ordered for service. Further during pendency of 6 the appeal plaintiff-respondent also died and a substitution petition filed was held to be beyond time. 8. The facts remained that deceased- respondent was represented by his two sons as respondent no. 3 and 4 and the first appellate court where the appeal was pending held that appeal did not abate for not bringing on record some of the heirs of the deceased- appellant no. 1 and hence a revision was preferred before Hon'ble court and Hon'ble High Court after due consideration of the decision in 1979 S.C. page 1393 as well as 1971 S.C. page 742 held that there is no illegality committed by the lower court. It was held that "where one of the legal representative of the deceased party is appeared before the court at the time when the proceeding is heard, but in another capacity it is immaterial where he is described as such or not ? and even if there are other legal representative will not abate" and held unless there is fraud and collusion or there are other circumstances which indicates that there has not been a fair or real trial or that against heir, there was special case which would not and could not be tried in the proceeding heirs , who have applied for tried on record should be held to represent the entire State including interest of heirs not tried on record. 7 9. However, under the facts and circumstances of present case nothing has been shown or tried that there was not been fair or real trial or that against abusing heirs there was special case which was not or could not be tried in the proceeding was not complied or raised by the respondent before the lower appellate court nor less before this Court. Hence ratio decided in 1981 PLJR while applicable to the facts and circumstances of the case. 10. However, decision reported in 1998 (2) PLJR page 543, some of the heirs were already on record and held that question for abate the suit as a whole could not arise. Hence, it is pertinent to quote para 5 of the said judgment; " In my opinion, since some of the heirs of the deceased defendant No. 2 were already on record, there was no question of abatement and the trial court committed an error in holding the suit to have abated as a whole by the impugned order dated 7.12. 1990. Even if there were two other heirs and legal representatives who were not on record and a petition for impleading them was not made within the period prescribed by the Limitation Act, the suit cannot be said to have abated. In this regard reference may be made to the 8 decision of the Apex Court in Mahabir Prasad V. Jage Ram" 11. Similar view has been expressed reported in 1984 BBCJ. Page 163. 12. Hence the position in law is well established that if some of the heirs of deceased are already on record the suit/appeal will not abate for the non substitution of the rest of the heirs. 13. Having regard to the fact and circumstances of the present case at hand since the two sons of Ram Beyas Ojha namely, Lallan Ojha and Bijay Shankar Ojha had already been on record and hence the abatement of suit does not arise. 14. Hence having regard to the fact and circumstances, I find and held that impugned order by which the appeal have been abated as a whole is set aside and substitution petition is ordered to be allowed with respect to rest of the heirs of the deceased respondent, with a direction to substitute the heirs not on record, hence impugned order is set aside and appeal is allowed. m.p. ( Gopal Prasad, J.)