ORDER
Ramratna Singh, J.
1. This application is directed against an order of the first Additional subordinate Judge of Arrah setting aside the Judgment and decree of the trial Court and remanding the suit for disposal according to law.
2. The petitioners were defendants along with one Ramkhelawan Pandey and opposite party 2 to 4. Opposite
party No. 1 was plaintiff in the suit which was for a declaration that certain plots of land measuring 2.94 acres constituted the ancestral land of the plaintiff. The plaintiff sought for confirmation of possession over the suit land and prayed for a permanent injunction restraining the defendants from interfering with their possession over the same. The suit was dismissed by the learned Munsif, Buxar, on the 30th August
1961. Then, the plaintiff preferred an appeal. Sometime in the beginning of 1962 the process-server, who had gone to serve notice of the appeal on the respondents, reported that respondent No. 3, that is, Ram Khelawan Pandey was dead.
By order No. 8 dated the 28th February 1962 the learned
District Judge of Shahabad directed the appellants to take steps with regard to respondent No. 3 by the 6th March
1962. On that date the plaintiff-appellant. Diljan Mian, filed a petition that the name of Ram Khelawan Pandey
should be expunged from the memorandum of appeal as it was learnt from enquiry that he was dead. The date of death was not disclosed in this petition nor any request made for time to make enquiries regarding his heirs. After the service of notice, the other respondents appeared in the appeal on the 7th April 1962 and some of them filed a petition that Ram Khelawan Pandey died on the 25th January 1962 at village Mahuarpatti Bahudri, and that Diljan Mian had knowledge of his death immediately, he being a close neighbour of Ram Khelawan pendey. It was further
stated in that petition that, inasmuch as no petition for substitution of the heirs or legal representatives of Ram Khelawan Pandey had been filed, the whole suit abated. No rejoinder was filed by Diljan Mian to this petition.
3. It was admitted before the first appellate Court that Ram Khelawan Pandey died on the 25th January 1962, that is, before the hearing of the title suit commenced, but Relying on the decision of a Bench of this Court in Ram Saran Ahir v. Prithvi Nath Singh, AIR 1952 Pat 267 the Court below held that the abatement matter could be decided only by the trial Court, and, therefore, the appeal was allowed and the case was remanded to the trial
Court.
4. The learned Advocate for the petitioners has challenged this view of the Court below and submitted that the first appellate Court ought to have finally decided the appeal on merits as well as the substitution matter, This submission is well founded. The learned Advocate for the opposite parties, however, supported the finding of the Court below relying on the said decision in Ram Saran Ahir’s case, AIR 1952 Pat 267 but the facts of that case were absolutely different. Two plaintiffs, namely, Ramdeo Singh and Prithvi Nath Singn, members of a joint Mitakshara family, instituted a suit for declaration of title and recovery of possession in respect of certain plots of land. The suit was decreed in full by the trial court. There was an appeal by the contesting defendants to the District Judge in which both Ramdeo and Prithvi Nath Singh as respondents appeared on the 30th January 1946. Ramdeo Singh, however, died near about that time but the fact of his death was not brought to the notice of the District Judge and he allowed the appeal in part on the 15th September 1948 In Ignorance of Ramdeo’s death. From the appellate Court decree Prithvi Nath Singh alone preferred a second appeal to the High Court. Along with the memorandum of appeal he filed an affidavit sworn by himself in which he stated that Ramdeo Singh had died on the 1st January 1948. This affidavit was supported by a certified copy of the death register. At the hearing of the second appeal it was agrued on behalf of the appellant that the appeal in the lower appellate Court could not proceed after it had
abated as against respondent Ramdeo who was a member of the joint family with the surviving respondent Prithvi Nath Singh. Sinha, J. who heard the second appeal gave effect to this contention and allowed the appeal and restored the decree passed by the trial court. It may also be mentioned that in second appeal a counter-affidavit was filed on behalf of the respondents, which was in substance an application for setting aside the abatement of the appeal In the lower appellate Court. With regard to this counter-affidavit Sinha, J. stated that the question as to when the appellants in the lower appellate Court came to know of the death of Ramdeo had not been investigated and “need not be investigated at this stage because this Court cannot set aside the abatement which occurred in the court below.” There was a Letters Patent Appeal against the decision of Sinha, J. The case of the defendants who were the appellants in the first appellate Court, was that they came to know of the death of Ramdeo only after the institution of the second appeal and they presented an application in second appeal for setting aside the abatement. The proper Court to deal with the application for setting aside the abatement was apparently the first appellate Court. In these circumstances, their Lordships allowed the Letters Patent Appeal and remanded the case to the Lower Appellate Court for disposal according to law. The reason given by their Lordships was as follows:
“If, in fact, the defendants were not aware of death of Ramdeo until after the filing of the second appeal, it will be, in my opinion, most unjust if investigation in the matter is shut out. If the decision of Sinha, J. were to stand, such investigation would be completely shut out. The proper course, therefore, would be to allow the appeal and set aside the decision of Sinha, J., and send the application tiled before him for setting aside the abatement to the Court of appeal below for disposal according to law.”
5. In the instant case, however, no application was ever made to set aside the abatement. When Diljan Mian, the appellant before the District Judge, was directed to take steps with regard to respondent no. 3, that is, Ram Khelawan Pandey by the 6th March 1962 on account of the report of the process server that he was dead, he that is, Diljan Mian filed a petition on the 6th March 1962 requesting the Court merely to expunge the name of respondent No, 3. He did not state in that petition that he was not aware of the death of Ramkhelawan earlier or that he wanted to take steps for substitution of his heirs or to make an application for setting aside the abatement. When the present petitioners appeared as respondents in the appeal, It was specifically stated that Ram Khelawan died on the 25th January 1961; Diljan being a close neighbour came to know of his death on the same date; and in the absence of any application for substitution of his heirs the whole suit and consequently the appeal abated. In the instant case, therefore, no investigation had to be made and there was no question of setting aside the abatement. Further, in the case of Ram Saran Ahir, the defendants were members of a Joint Mitakshara family, while it was conceded at the Bar in the instant case that the interest of Ram Khelawan was distinct from that of the other defendants in the suit. Hence, there was no risk of any inconsistent decree. The decision in Ram Saran Ahir’s case cannot, therefore, apply to the instant case.
6. The learned Advocate for the, opposite parties aiso relied on an unreported Bench decision of this court in First Appeals Nos. 335 and 340 of 1954 D/- 13-9-1960 Jankuri v. Sheonandan Gope (Pat). There is a general observation in this decision which reads thus:
“It is also well settled now that when death of a person takes place during the pendency of a suit ana substitution of trie heirs is not made during the pendency of the suit, and an appeal is preferred in ignorance of the fact but the defect is Drought to the notice of the appellate Court, then the proper course to adopt is to remand the case to the Court below for considering the prayer tor substitution and proceeding from that stage afresh.”
In that case, however, it was not stated that the appellants were aware of the death of two of the defendants during the pendency of the suit soon after their death. A preliminary objection was taken in the first appeals in this Court that the appeals were not competent because of the death of the two defendants in the suit; on this objection the above observation was made and the suit was remanded to the Court below to be taken up after deciding the prayer for substitution in respect of the two deceased defendants. But in the instant case, as stated earlier Diljan Mian was aware of the death of Ramkneiawan Pandey soon after his death and he did not want time to substitute his heirs or to make an application for setting aside the abatement. Hence, this decision also is of no help to the opposite parties. In We circumstances, it must be held, that the Court below has exercised its jurisdiction illegally and with material irregularity.
7. In the result, the impugned order of remand is set aside and the Court below is directed to hear we appeal on merits as also the question as to what extent the suit had abated and then dispose of the appeal in accordance with law. The application is accordingly allowed, but in the circumstances, there will be no order as to costs of this Court.