Aparesh Kumar Singh, J. - (1.) The short question which arises for determination in the instant appeal, at this stage, is whether the appeal stands abated in toto on the death of some of the respondents who were non-contesting during the trial of the Suit (filed by the plaintiffs/contesting respondents seeking 1/9th share upon partition of the entire suit property) or whether the prayer of the contesting defendants/ appellants herein for exemption of the deceased respondents under Order 22 Rule 4(4) of the Code of Civil Procedure deserves to be allowed.
(2.) Few bare relevant material facts need to be stated at the outset. Plaintiffs, who were the descendents from the daughter of Sardar Ram Singh, claimed 1/9th share in the suit properties described in the plaint upon partition. Contesting defendants who are the appellants herein and other co-defendants except defendant no.31 were the sons or descendents of such sons from Late Sardar Ram Singh. Defendant no.31 was the daughter of Sardar Ram Singh but she also did not file a written statement, though she deposed during the trial in favour of the defendants. Contesting defendants/appellants and some other defendants did file written statements. However, it is not in dispute that the present issue deals with cases of such defendants/respondents herein i.e. respondent no.6 to 8, 11 to 13, 15, 21 and 27 who had not filed written statements during the trial. Respondent no.31 had earlier been substituted by order passed on 13th November 1992 which reads as under:- "So far respondent no.31 is concerned, no doubt, she is necessary party to the appeal, but her deposition read in the court shows that she had received Rs.15,000/- (rupees fifteen thousand) only in lieu of her share in the property and that she had no interest in the property earned by her father. Although, the evidence is subjudice in this Court, but the fact remains that she had admittedly received the said amount. Having regard to such admission, she cannot be treated to have same interest in the property as her appellant brother has. I am persuaded of this fact for ignoring the delay in filing the substitution petition."
(3.) Legal heirs of the deceased respondent no.31 were substituted accordingly as respondent nos. 31(a) to (g). Though respondent no.31(g) has died but rest of the legal heirs of respondent no.31 are on record.;