Prasenjit Mandal - (1.) THIS application is at the instance of the defendants and is directed against the order dated September 17, 2010 passed by the learned Civil Judge (Junior Division), 4 th Court, Howrah in Title Suit No.84 of 2009 thereby rejecting an application under Order 22 Rule 3 of the Code of Civil Procedure (henceforth shall be called 'C.P.C.') filed by the plaintiffs with costs.
(2.) THE short case is that the plaintiffs / opposite parties herein instituted a suit being Title Suit No.84 of 2009 praying for a decree of declaration, permanent injunction and other reliefs. THE defendants are contesting the said suit. On August 11, 2009, the plaintiffs filed an application under Order 22 Rule 3 of the C.P.C. contending, inter alia, that the plaintiff no.4, Shyamsunder Pal died intestate as bachelor on June 30, 2009 and his heirs are already on record as other plaintiffs. So, the other plaintiffs prayed for expunge of the name of the plaintiff No.4. THE defendants / petitioners herein filed a written objection contending, inter alia, that the sisters of the deceased plaintiff no.4 are the actual heirs and they are to be substituted for the deceased plaintiff no.4 and as such, the said application is not maintainable. Upon hearing both the sides, the learned Trial Judge has rejected the said application with costs of Rs.1,000/-. The learned Trial Judge has also held that the suit has abated against the deceased plaintiff no.4 and as such, the name of the plaintiff no.4 be expunged from the cause title from the suit. Being aggrieved by such orders, the defendants have preferred this application. Now, the question is whether the impugned order should be sustained. Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that the suit property as described in the schedule of the plaint originally belonged to Mahendra Dutta and Purna Chandra Dutta, since both deceased. They constructed a building on the 'A' Schedule property. Upon the deaths of Purna Chandra Dutta and his wife, his undivided half share had devolved upon the two sons of Mahendra Dutta, namely, Satish Chandra Dutta and Indu Bhusan Dutta. Satish Chandra Dutta died issuless and as such, his wife, Radha Rani Dutta obtained the property by inheritance from her husband. Radha Rani Dutta had sold her undivided half share in 'A' schedule property to Radha Rani Pal and her son, Bimal Kumar Pal by a Registered Deed of Sale dated February 14, 1962 measuring about 4 decimals of land which has been described in Schedule 'B' to the plaint. Thereafter, Radha Rani Pal died leaving behind her two sons, namely, Bimal Kumar Pal and Shyamsunder Pal. Bimal Pal died leaving behind the plaintiff no.1, plaintiff no.2 and plaintiff no.s 3 & 5. Upon the death of Shyamsunder Pal, the said application under Order 22 Rule 3 of the C.P.C. was filed.
(3.) THE plaintiffs have prayed for the following reliefs in the said suit:- a) A declaration that the plaintiffs are the co-sharer of the 'A' schedule property and they have every joint right, title and interest to the suit property; b) Decree for permanent injunction for restraining the defendants and their men and agent from disturbing and creating any obstruction to the peaceful possession of the plaintiffs in the suit property; c) Decree for all costs of the suit; and d) Decree for any other relief/reliefs, in which plaintiffs are entitled both in law or in equity. Thus, from the prayer in the plaint, I find that upon the death of the plaintiff no.4, right to sue does not survive to the surviving plaintiffs and as such, the heirs of the deceased plaintiff no.4 are required to be substituted. Now, by filing this application under Order 22 Rule 3 of the C.P.C., the plaintiffs have stated that the other plaintiffs, that is, the nephew and nieces of the deceased plaintiff are the heirs of the plaintiff no.4. But, from the materials on record as well as the objection, it appears that the deceased plaintiff no.4 has three sisters, namely, Shyamali Chandra, Rameswary Dey and Shanti Nag (all married) and as such, according to the Law of Succession of a Hindu male dying intestate, the sisters of the deceased plaintiff would get priority in relation to the nephew and the nieces as prayed for in the application for substitution. It may be mentioned herein that the application for substitution has been filed within the period of 90 days as provided in Article 120 of the Limitation Act.;