Kalyan Jyoti Sengupta, J. - (1.) This appeal is directed against the Judgment and order dated 15th December, 1990 passed by the learned Assistant District Judge, Tamluk in Title Appeal No. 69 of 1989. The Appeal in the learned Appellate Court below was preferred against the judgment and decree dated 10th August, 1989 passed by the learned Munsif in the 1st Court, Tamluk in Title Suit No. 187 of 1984. The learned Munsif dismissed the aforesaid Title Suit while dealing with an application made by the respondent No. 1 herein for bringing herself as a plaintiff upon the death of the original plaintiff in the Title Suit. The learned Munsif while dismissing that application held that the application made by the respondent No. 1 for bringing herself as a party plaintiff striking out the name of the original plaintiff on her death was not maintainable. It was further held by the learned Munsif that on death of the original plaintiff as there was no lawful application for substitution of the original plaintiff the suit had abated wholly. Accordingly the suit was liable to be dismissed. The learned Munsif on the date of dismissal of that application made by the respondent No. 1 dismissed the suit.
(2.) Against that order of dismissal of the application made by the respondent No. 1, the respondent No. 1 preferred the appeal before the learned Court below. The learned Court below allowed the appeal and set aside the order of dismissal and further directed the learned Trial Judge to allow the application made by the respondent No. 1 for substitution of the respondent No. 1 in place and stead of the original plaintiff since deceased. It has been held by the learned Appellate Court below that order of dismissal of the suit is wholly illegal as while deciding the question of abatement and further application for substitution the learned Munsif should not have dismissed the suit altogether. The learned Appellate Court below was of the view that the application made by the respondent No. 1 is in real sense an application for substitution in place and stead of the deceased original plaintiff. It has been further observed by the learned Appellate Court below that prayer of the application of the respondent No. 1 was not happily couched.
(3.) Mr. Mukherjee the learned Senior Advocate appearing for the appellant, submits that the learned Appellate Court below ought not to have interfered with the order passed by the learned Munsif so far as it relate to his decision holding the suit had abated. Mr. Mukherjee submits very fairly that the order of dismissal of the suit itself by the learned Munsif is not justified under the law and as such the order of the learned Appellate Court below setting aside the order of dismissal of the suit is acceptable. Mr. Mukherjee submits that I should interfere with the order of the learned Appellate Court below so far as it relate to his decision that the suit had not abated and further the application made by the respondent no. 1 should be allowed by the learned Munsif and consequently prayer for substitution of the respondent no. 1 should be allowed.;