MANNI DEVI Vs. RAMAYAN SINGH

JUDGEMENT

(1.) This is plaintiff"s petition against order of the court below abating the suit as a whole by refusing to substitute the heirs of defendant 1, the vendor. This revision arises out of a suit for specific performance of contract. Defendant 2 is the subsequent purchaser from the principal vendor, defendant 1, who is now dead.

(2.) An application for substitution in the court below was filed on 2-1-1976. According to the case of the plaintiff, defendant 1 died on 2-10-1975 whereas according to the defendant the date of death is 18-9-1975. If the date of death is 18-9-1975, the application for substitution was barred by limitation whereas if the date of death is 2-10-1975, which is the case of the plaintiff to be the correct date, the petition for substitution was in time.

(3.) In support of the respective cases of the parties, evidence has been led by both sides oral as well as documentary. Defendant examined many witnesses and filed the Death Register (Exhibit A) in support of his assertion that the date of death is 18-9-1975. On behalf of the plaintiff witnesses were examined including the Purohit, who is said to have participated in the Shradh function and according to them the defendant died on 2-10-1975. The courts below have considered the oral evidence and concluded that the date given by the defendant is correct. In support of the said conclusion the courts below relied upon Exhibit A, the death register. The trial court after having held the date furnished by the defendant to be correct and refusing substitution of the legal representative of defendant 1 concluded that the suit has abated as a whole. As against that the plaintiff preferred an appeal and the appellate court refused to interfere with the findings of fact recorded by the trial court and affirmed the judgment of the trial court.