S. Chandrashekhar, J. - (1.) Aggrieved by order dated 15.05.2014 in Title Suit No. 124 of 2012 whereby, application under Order XXII Rule 4, CPC r/w Order 1 Rule 10, CPC has been dismissed, the present writ petition has been filed. The petitioners are plaintiffs in Title Suit No. 124 of 2012. The suit was filed for a declaration of their title and confirmation of possession. The plaintiffs asserted that land under Khata No. 81 in Mouza Kolakusma was originally held and possessed by Daya Mandal, Pabi Mandal and Mati Mandal. The said raiyats executed gift -deed in the year, 1935 in favour of Khudu Mandal and put him in possession over the land under various khata numbers in Plot No. 3458. Khudu Mandal transferred 1.20 acres land in Plot No. 3458, about 33 decimals land in Plot No. 3387 and about 1.97 acres land in Plot No. 3387 under Khata No. 32 vide sale -deed dated 27.04.1940 in favour of Babulal Mandal and Aku Mandal. The plaintiffs are legal heirs and successors of Babulal Mandal and Aku Mandal and they are in peaceful possession of the lands comprised in sale -deed dated 27.04.1940. The defendant Nos. 2, 3 and 4 or their legal heirs appeared in the suit and filed common written statement raising various pleas including, a plea of non -joinder of necessary parties. In the pending suit application dated 12.08.2013 was filed by the appearing defendants asserting that defendant Nos. 1 & 5 had died before institution of the suit. Thereafter, application under Order XXII, Rule 4, CPC for substitution of legal heirs of defendant Nos. 1 & 5 was filed by the plaintiffs on 18.09.2013. The said application has been dismissed on the ground that in the said application the plaintiffs failed to add the legal heirs and successors of the defendant Nos. 1 & 5.
(2.) The learned counsel for the petitioners submits that the plaintiffs became aware of the death of defendant Nos. 1 & 5 after the defendants filed application dated 12.08.2013 seeking dismissal of the suit. The plaintiffs thereafter, promptly filed application dated 18.09.2013 and therefore, the plaintiffs were entitled to invoke provision under proviso to Sec. 21(1) of the Limitation Act, 1963. It is further submitted that since the legal heirs and successors of the defendant Nos. 1 & 5 are necessary parties to the suit, application under Order XXII, Rule 4, CPC should have been allowed. The learned counsel for the petitioners relies on decisions in "Rasetty Rajyalakshmamma and others v/s. Rajamuru Kannaiah" reported in : AIR 1978 Andhra Pradesh 279 and in "Karuppaswamy and others v/s. C. Ramamurthy" reported in : AIR 1993 SC 2324 and judgments of Madhya Pradesh High Court, Orissa High Court and Delhi High Court.
(3.) Per contra, the learned counsel for the respondents submits that there was gross laches on the part of the petitioners in filing application for substitution of legal heirs of defendant Nos. 1 & 5. Though, the respondents took a specific plea in the written statement that the suit has been filed against dead persons, application seeking substitution of legal heirs was filed about one year thereafter. It is further submitted that even in application dated 18.09.2013, the plaintiffs failed to disclose the name of all the legal heirs and successors of the defendant Nos. 1 & 5.;