- (1.) These applications have been filed in the second appeal admitted by the Division Bench on July 12, 2002. The first application, CAN 1238 of 2014, is at the instance of the respondent no. 1, the defendant no. 1 in the partition suit, for recording the abatement of second appeal on the ground that four respondents have died and their respective legal representatives have not be substituted in the appeal. The second application, CAN 4204 of 2014 has been filed by the appellant praying for setting aside of the abatement of the appeal against the deceased respondents after condoning the delay and a direction upon the surviving sole respondent to furnish the names and addresses of the legal representatives of the respective deceased respondents.
(2.) The appellant, a stranger purchaser of a portion the suit property, (jointly owned by the ancestors respondent nos. 1, 2, 4 and 5), filed the suit claiming partition of the suit property. The respondent no. 3, since deceased, also a stranger purchaser of a portion of the suit property was the defendant no. 3 in the partition suit. In the partition suit, the defendant respondent no. 1 filed an application claiming a decree for pre-emption against of both the stranger purchasers. The learned trial Court rejected the claim of the plaintiff appellant for partition and allowed the prayer of the defendant respondent no. 1 for preemption against both the plaintiff appellant and the defendant respondent no. 3, since deceased. However, the learned trial Court did not declare the shares of respective shares of the partition suit. The plaintiff appellant filed an appeal against the judgment and decree of the learned trial Court before the learned first appellate Court. By an order dated September 10, 1990 the learned first appellate Court set aside the judgment and decree passed by the learned trial Court and remanded the partition suit to the learned trial Court. In an appeal filed by the defendant respondent no. 1, this Court set aside the said decision of the learned first appellate Court and directed the learned first appellate Court to decide the appeal on merit and ascertain the shares of the respective parties to the partition suit. By the impugned judgment dated December 20, 2001 the learned first appellate Court affirmed the judgment of the learned trial Court that the suit property is the dwelling house of the family of the respondent nos. 1, 2, 4 and 5 and as also the decree of the learned trial Court for pre-emption in favour of the defendant respondent no. 1. The learned first appellate Court declared the shares of the respective parties to the suit.
(3.) From the cause title of the memorandum of appeal it appears that the addresses of the appellant and the respondent nos. 3 and 5, since deceased are the same, that is, village- Patna, P.S. Polba, District-Hooghly.;