RAJNATH SAHGAL Vs. SHIVA PRASAD SINHA

JUDGEMENT

(1.) In a civil revision petition, these petitioners (defendants 12 to 14) have challenged the validity of the order dated 29th March, 1978 passed by the First Subordinate, Judge, Arrah, in Title suit No. 46 of 1977. By virtue of this order, the learned Subordinate Judge was pleased to set aside the abatement and exempted the plaintiffs from substituting the legal heirs of defendants 1 and 10. It is this order which is under challenge before this court.

(2.) The plaintiffs filed the suit for a declaration that the sale deed dated 15th May, 1972 executed by defendants 1 to 7 in favour of defendants 12 to 14 is void and inoperative so far as the plaintiffs and defendants 8 to 11 are concerned. The common ancestor of the original plaintiffs and defendants 1 to 7 and defendants 8 to 11 was Bhagwan Prasad. He died leaving behind three sons, namely, Mahesh Prasad, Bishwanath Prasad and Mahadeo Prasad. The original plaintiffs belonged to the branch of Bishwanath Prasad, whereas defendants 1 to 7 belonged to the branch of Mahesh Prasad, and defendants 8 to 11 belonged to the branch of Mahadeo Prasad. By virtue of the sale deed dated 15th May, 1972, defendants 1 to 7 sold the suit properties to defendants 12 to 14. The case of the plaintiffs and defendants 8 to 11 was that defendants 1 to 7 had no right to sell the share of the plaintiffs and defendants 8 to 11. The suit was origi-naily filed before the Subordinate Judge at Varanasi. By the order of the Supreme Court, the present suit was transferred from Varanasi to the court of the Subordinate Judge at Arrah.

(3.) In the present case, the admitted position is that defendant No. 1 Dr. Vishnu Shankar died on 5th August, 1975, and Satyanarain Prasad (defen dant No. 10) died on 6th January, 1975. It is also an admitted position that the original plaintiffs did not file any application for substitution within 90 days of the date of death of defen dants 1 and 10. Defendant No. 11 Sri S. P. Sinha filed an application for sub stituting the heirs of Dr. Vishnu Shan kar on 29th November, 1975, and this application was filed within 150 days, that is, within statutory period for set ting aside abatement.