Kunul Bhuiyan & Ors vs Benjamin Topno & Ors
2023 Latest Caselaw 1663 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                S.A. No. 400 of 2015
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Kunul Bhuiyan & Ors. .... .... .... Appellants Versus Benjamin Topno & Ors. .... .... .... Respondents

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CORAM: HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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For the Appellants : Mr. Mahesh Tewari, Advocate For the Respondents : Mr. Ayush Aditya, Advocate

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Order No.09 Dated- 19.04.2023 I.A. No.2301 of 2021 Learned counsel for the respondent no.1 submits that the respondent no.3- Marcus Topno died on 20.10.2016 leaving behind his only five legal representatives whose names have been mentioned para -2 of the instant interlocutory application but no prayer for their substitution has been made. It is next submitted by the learned counsel for the respondent no.1 that as the appeal cannot be segregated against rest of the appellants, hence, it is submitted that this appeal be declared abated as a whole.

Perusal of the record reveals that upon non-substitution of the legal representatives of the deceased respondent no.3; vide order dated 08.02.2023, the appeal has already abated against the respondent no.3.

Perusal of the record further reveals that this appeal has been preferred against the judgment and decree passed by the District Judge-I, Khunti in Title Appeal No. 14 of 2009 whereby and where under the first appellate court allowed the appeal and the suit filed with the prayer for declaration of right, title and interest and confirmation of possession and in case the plaintiffs are found dispossessed then for recovery of possession.

The case of the plaintiffs is that the plaintiffs jointly are the descendants of the recorded tenants whereas the case of the defendants as made out in their joint written statement is that they are jointly having title and possession over the suit land. The suit of the plaintiffs was dismissed by the trial court but the same was decreed by the first appellate court upon allowing the appeal. Hence, in this second appeal, in the absence of the legal representatives of the deceased respondent no.3 who was the plaintiff no.3, certainly no effective decree can be passed against the rest of the plaintiffs as the inheritance of the property of the plaintiffs is joint.

Accordingly, this second appeal no. 400 of 2015 abates as a whole.

This interlocutory application stands disposed of being allowed.

Sonu-Gunjan/- (Anil Kumar Choudhary, J.)