Patna High Court - Orders
Kailash Pati Pd. Gupta @ Lalba vs Bijoy Krishna Pd.@ Hira Babu & on 15 May, 2014
Author: Birendra Prasad Verma
Bench: Birendra Prasad Verma
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.478 of 1975
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1. Kailash Pati Prasad Gupta @ Lalba, son of late Ram Veyas Prasad
2. Badri Narain Prasad
3. Umashankar Prasad
4. Ram Krishn Prasad
5. Munanji
2 to 5 sons of Kailash Pati Prasad Gupta @ Lalba. All residents of
Mauza Muriar, Police Station Dehri, Pergana Sasaram, District Rohtas
.... ....Defendant Nos. 1 to 5- Appellant/s
Versus
1. Bijoy Krishna Pd.@ Hira Babu, son of late Ram Veyas Prasad
2. Rajni Kant
3. Hari Mohan Prasad
Both 2 and 3 sons of Bijoy Krishna Prasad @ Hira Babu. Residents of
Mauza Muriar, Police Station Dehri, Pergana Sasaram, District Rohtas
... ... 1 to 3 Plaintiffs in the court below-Respondents 1st party
4. Ramjag Sah, son of Raj Kumar Sah
5. Surya Narain
6. Ramchandra Prasad
Both 5 and 6 sons of Dular Sah. Residents of Mauza Muriar, Police
Station Dehri, District Rohtas
. . . 4 to 6 defendant Nos. 7 to 9 in the court below-Respondent 2nd party
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Appearance :
For the Appellant/s : Mr.
For the Respondent/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA
ORAL ORDER
18 15-05-2014This First Appeal has been filed against the judgment and decree dated 25th June, 1975 passed in Title Suit No. 941/32 2 Patna High Court FA No.478 of 1975 (18) dt.15-05-2014 2/4 of 1972/1975 by the learned 5th Additional Sub-Judge, Sasaram.
2. The plaintiffs-respondent 1st party herein brought the aforesaid suit for partition claiming 2/3rd share in the suit properties, fully detailed in Schedules 1 and 2 of the plaint. The suit was contested by the defendant No.1 by filing his written statement. Separate written statements were filed on behalf of the minor defendants as also defendant No. 7 also, resisting the prayer made on behalf of the plaintiffs with respect to the suit properties.
3. Finally, by the impugned judgment and decree the suit was decreed in part on contest against the contesting defendants and ex parte against the remaining defendants. The learned trial court came to a conclusion that the plaintiffs- respondent 1st party herein are entitled to 2/3rd share in the suit properties excepting R.S. Plot No. 882,which was held to be in exclusive share of the defendant No.1.
4. The defendant Nos. 1 to 5, being aggrieved by the impugned judgment and decree, preferred the present First Appeal, which was admitted by this Court on 25.2.1981 and notices were issued to the respondents.
5. By the office notes dated 13.5.2014, it has been pointed out that this appeal vice appellant Nos. 2 to 5 stood rejected on account of non-compliance of the Court's order dated 5.5.2014. Hence, competency matter of the present First Appeal has been placed for consideration by this Bench.
6. Despite repeated calls, none appears on behalf of the appellants in support of the present first appeal. On 5.5.2014 also when the matter was taken up for consideration, none had appeared on behalf of the appellants, though the names of the learned counsels appearing on behalf of the appellants are printed 3 Patna High Court FA No.478 of 1975 (18) dt.15-05-2014 3/4 in the daily cause list. So far the respondents are concerned, till date none has entered appearance.
7. This appeal is very old one and is pending before this Court since the year 1975, and since then more than 38 years have already elapsed.
8. On examination of the records, this Court finds that the respondent No. 4 died during the pendency of the appeal. Substitution petition filed by the appellants seeking substitution of the heirs and legal representatives of the deceased respondent No. 4 stood rejected on account of non-compliance of the order dated 21.11.1980 passed by a Division Bench of this Court. Accordingly, a note of abatement of the appeal as against the heirs and legal representatives of deceased respondent no. 4 was recorded on 16.3.1981 by a Division Bench of this Court.
9. On examination of the records, this Court further finds that this appeal stood dismissed as against the respondent Nos. 2 and 3 on account of non-compliance of the Court's order dated 31.7.1985. Indisputably, despite passage of such a long time, no petition has been filed on behalf of the appellants either for setting aside the abatement of appeal vice deceased respondent No.4 or for restoration of the appeal as against the respondent Nos.2 and 3. Now, the appeal stood rejected vice appellant Nos. 2 to 5 also, which has been noticed above.
10. Admittedly, this First Appeal arises out of a judgment and decree passed in a Partition Suit. Admittedly, the suit was decreed in part in favour of the plaintiffs-respondent Nos. 1 to 3 herein. The respondent Nos. 2 and 3 are the decree holders, against whom this appeal stood dismissed as far back as in the 4 Patna High Court FA No.478 of 1975 (18) dt.15-05-2014 4/4 year 1985.
11. In view of the dismissal of the appeal on behalf of the appellant Nos. 2 to 5 as also against the respondent Nos. 2 and 3 and in view of its abatement vice deceased respondent No. 4, the present First Appeal has become incompetent and cannot proceed further.
12. In the aforesaid factual matrix, this Court is of the considered opinion that no useful purpose shall be served by keeping this first appeal pending any longer before this Court.
13. In the result, this appeal as a whole has to fail and is, accordingly, dismissed, but there shall be no order as to costs.
(Birendra Prasad Verma, J) Kanth/-