Jyotirmoyee Nag, J. - (1.) This Rule is directed against order No. 14 dated 27.3.74 passed by Shri M.N. Haidar, learned District Judge, Hooghly, in Misc. Appeal No. 193 of 1973, rejecting the prayer of the petitioners for their substitution in place of their father, the plaintiff since deceased. The original plaintiff instituted a suit against the opposite parties for a declaration of his title as a bhagidar and for permanent injunction. The suit was numbered as Title Suit No. 178 of 1973 in the First Court of the learned Munsif at Chandernagore, District Hooghly.
(2.) The plaintiff's case was that he did not execute any deed of relinquishment or Istafa of his bhagchas right as was falsely alleged by defendant No. 1 in Tittle Suit No. 4 of 1973 of the same Court which was dismissed for non-prosecution on the basis of a petition of compromise between the defendant No. 1 and the sons of the plaintiff since deceased. It was the further case of the plaintiff that his possession was recognised by the Junior Land Reforms Officer. The plaintiff filed an application for temporary injunction on which an ad interim injunction was granted by an order dated 12.7.73 but it was ultimately vacated by an order dated 24.9.73 and the application for injunction was dismissed. Against the said order of dismissal the plaintiff filed an appeal being Misc. Appeal No. 193 of 1973 in the court of the learned District Judge, Hooghly. While the appeal was pending before the learned District Judge, Hooghly, the plaintiff, Nandi Charan Pakira, died on 16.1.74 leaving behind him the present petitioners as his heirs and legal representatives. On 23.2.74 the petitioners filed an application for substitution in place and stead of the deceased plaintiff to which the contesting opposite parties filed objections. The learned District Judge by an order dated 23.3.74 was pleased to reject the said application on the ground that the plaintiff had given Istafa in respect of the said land on 1st Baisakh, 1370 B.S. and a subsequent Istafa was also given by the four sons of the deceased bargadar. The learned Judge also rejected the application for substitution in view of the provisions contained in Section 15A of the West Bengal Land Reforms Act which, according to the learned Judge, provides that the bargadar while cultivating any land dies, then his lawful heirs can continue the cultivation. As the appellant was not cultivating the land the question of continuance of cultivation by the lawful heirs oi the deceased bargadar does not arise and hence they cannot be substituted in place of the deceased bargadar. Against this order the petitioners have come up in revision before me.
(3.) Mr. Samir Kumar Mukherjee appearing for the petitioners has submitted that whether the bargadar was cultivating or not is a question that sub judice in the suit and that should not be taken into consideration when the question of substitution arises. Whether the Istafa granted by the deceased plaintiff and his four sons is a valid Istafanama or not that is also a matter to be considered in the suit. These considerations should not affect the question of substitution of his heirs. He has further drawn my attention to Section 20B which provides that if a bargadar surrenders or abandons his barga rights then whether he has actually surrendered his rights voluntarily will be considered by the officer concerned. Therefore, the Istafanama granted by the deceased plaintiff and his sons will have to be considered by the officer concerned whether they were voluntarily granted or not and that should not affect the present question that is raised before me. Next Mr. Mukherjee has drawn my attention to Section 15A of the Land Reforms Act. Who amongst his heirs will cultivate the lands of the deceased bargadar will be decided by the Land Reforms Officer if this question comes up before him. Whether a bargadar is continuing cultivations at the time of his death and who will be the next person to cultivate amongst his heirs that is a separate issue from the question that is raised before me whether the petitioners will be substituted in place of the deceased (bargadar) plaintiff. It is submitted by the learned advocate appearing for the opposite parties that so far as Section 20B of the Land Reforms Act is concerned that came into existence long after the Istafanama was alleged to be granted by the petitioners' father and the petitioners. Accordingly Section 20B is not attracted to the present case. So far as that section is concerned, I am in agreement with the submissions made by the learned Advocate for the opposite parties. That section has nothing to do with the Istafanama granted prior to that date, i.e., prior to 1971. Regarding the application of Section 15A, that section also does not apply to the facts of the present case for the question that has to be considered in case of substitution is whether the cause of action survives to the heirs and legal representatives of the deceased plaintiff and whether they can carry on the proceedings that are pending before the learned Judge. That is a separate question from the question that will be decided by the Land Reforms Officer under Section 15A of the Act. There he has to decide as to who amongst the heirs would continue the cultivation on behalf of the deceased bargadar. Accordingly I hold that the cause of action survives to the heirs and legal representatives of the deceased bargadar, the petitioners as the heirs and legal representatives of the deceased bargadar and as such they can carry on the proceedings and should accordingly be substituted in place of the deceased bargadar plaintiff. It has been pointed out to me that so far as the appeal is concerned abatement was recorded on 28.3.74 whereas the present revisional application was filed on 28.6.74 long after the order of abatement was recorded by the learned District Judge and hence it is submitted that this Rule has become infructuous. In this connection the learned Advocate for the petitioners has cited before me a case which is reported in AIR 1961 Mys. 197 (H. Venkatanaran v. H.R. Seshagiri Rao) , wherein it has been held that "If a suit is brought by a plaintiff, on the footing that the defendant is an agriculturist, claiming the larger period of limitation on that basis and the Court record a finding that the defendant is not an agriculturist, and, therefore, dismisses the suit, if the finding on which the dismissal of the suit rested is vacated by the High Court in a revision petition filed by the plaintiff against the finding, the dismissed falls with it the moment the finding is so vacated and the suit gets immediately revived. Agreeing with this principle, I hold that although there is an abatement recorded, since I have found that the heirs of the deceased plaintiff should be substituted in place of the deceased plaintiff, the appeal can nevertheless go on as the order of abatement gets vacated after what I have found.;