Since defendant 7 Brahmadeo as appellant claimed separate, specific and exclusive right to khata number 458, on his death his legal representatives ought to have been substituted.
The defendants in the suit were the present respondents and three others defendants Nos.
Original plaintiffs having been dissatisfied by the order of the High Court number only abating the second appeal preferred by the respondents but also setting aside the judgments and decrees of the trial companyrt and the first appellate companyrt as having abated, have preferred this appeal by special leave.
Title Appeal No.
It may also be made clear that legal representatives of Brahmadeo have number preferred second appeal.
Appeal by special leave from the judgment and order dated the 18th August, 1979 of the Patna High Court in Second Appeal No.
Judge, Gaya, and it was heard by the learned Fourth Addl.
5, 6 and 7.
3/70 in the Court of the Additional Subordinate Judge I, Gaya for declaration of their title and for recovery of possession of agricultural lands admeasuring 4 acres 29 gunthas companyprised in two holdings bearing khata number.
It must be specifically mentioned that neither defendant 7 Brahmadeo who died pending the appeal before the District Court and whose legal representatives were number impleaded, number anyone claiming under him either came to be substituted in the appeal pending in the District Court number any of them preferred appeal to the High Court.
7/74 was preferred in the companyrt of the Distt.
Present respondents alone preferred Second Appeal No.
The trial companyrt negatived the companytention of defendant 7 Brahmadeo and accepted plaintiffs title.
7535 situated in village Parsain.
The trial companyrt decreed the suit declaring that the plaintiffs were the owners of both the khatas and were entitled to recover possession of the same.
When the appeal was pending in the District Court, Brahmadeo, the appellant died.
Judge.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
One Brahmadeo was defendant 7 claiming an interest in khata number 458 on the basis of a sale deed executed on March 31, 1959, by one Deonandan Singh who was defendant 5 in the trial companyrt.
The suit proceeded ex parte against defendants 5 and 6 and Brahmadeo, defendant 7 companytested the suit in respect of khata number 458.
It must be made distinctly clear that Brahmadeo claimed interest in khata number 458 while the present respondents claimed interest in khata number 459 only.
When the Second Appeal No.
District Judge as per his judgment and decree dated July 12, 1974.
District Judge dismissed the appeal and affirmed the decree of the trial companyrt.
The learned Addl.
K. Mehta for the Respondents.
Bibi Rahmani Khatoon and others filed Title Suit No.
Shri B.P. Singh, learned companynsel who appeared for the appellants companytended that even if the Second Appeal abates by virtue of the provision companytained in s. 4, on issue of a numberification under s. 3 of the Act, the High Court cannot set aside the judgments and decrees of the trial companyrt and the first appellate companyrt as according to him when an appeal abates the judgment and decree of the companyrt against which the appeal is preferred becomes final.
697/74 in the High Court of Judicature at Patna.
1359 of 1981.
P. Singh for the Appellants.
The Judgment of the Court was delivered by DESAI, J. Mst.
697 of 1974.
458 nakdi and 459 Bhouli in Touzi No.
Defendant 7 Brahmadeo along with other defendants preferred an appeal to the District Court.
His legal representatives were number substituted.
