Beena and Ors. Vs Late Heeramati Now Died State of C.G.

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2025:CGHC:1385

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NAFR

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AJAY KUMAR DWIVEDI Date: 2025.01.10 12:56:19 +0530

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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SA No. 475 of 2015

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1 - Beena W/o Vidyaram Thoriya, Aged About 42 Years R/o Village Tildega, Tahsil And Police Station Patthalgaon, District Jashpur, Chhattisgarh, Chhattisgarh

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2 - Late Mohit Ram Now Died Represented By His Legal Heir Wife Rukhmani, Aged About 45 Years, R/o Village Tildega, Tahsil And Police Station Patthalgaon, District Jashpur, Chhattisgarh, District : Jashpur, Chhattisgarh

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3 - Late Mularo Bai Now Died Represented By Her Legal Heir Son Jamuna Prasad, Aged About 59 Years, R/o Village Tildega, Tahsil And Police Station Patthalgaon, District Jashpur, Chhattisgarh, District : Jashpur, Chhattisgarh

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... Petitioner(s)

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versus

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1 - Late Heeramati Now Died State Of C.G. Represented By Her Estate As Per Order 22 Rule 4 A C.P.C. For Such Representation Separate Application Also Filed Plaintiff, Chhattisgarh

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2 - State Of Chhattisgarh, Through The Collector Jashpur, Chhattisgarh Defendant, District : Jashpur, Chhattisgarh

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... Respondent(s)

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For Petitioner(s)	: Mr. Shivendra Bhardwaj,Advocate.
For RespondentNo.1	: None.
For Respondent	: Mr. Anurag Tripathi & Mr. T. S. Sahu, Panel Lawyers.
No.2/State

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SB : Hon'ble Shri Justice Deepak Kumar Tiwari, J. Judgment On Board

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09.01.2025

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This appeal has been preferred against the judgment and decree dated 07.02.2015 passed by the Additional District Judge, Kunkri, Jashpur in Civil Appeal No.1-A/2008, whereby, the appeal preferred by the plaintiff was allowed by reversing the judgment and decree dated 06.10.2007 passed by the Civil Judge, Class-2, Patthalgaon in Civil Suit No.15-A/2005 and thereby, decree has been passed in favour of the plaintiff.

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In the decree, it has been declared that plaintiff Heeramati is the sole owner of the suit land bearing Khasra No.334 area 0.121 hectare and the remaining area admeasuring 3.055 hectare, out of the total area admeasuring 3.176 hectare. It has also been declared that the sale deed dated 08.03.1995 executed by deceased Ranmet in favour of defendant No.1 Beena and defendant No.2 Mohitram is null and void and the plaintiff shall be entitled for possession of the suit land from defendants No.1 to 3.

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Facts of the case, in nutshell, are that respondent No.1/plaintiff preferred Civil Suit No.15-A/2005 for declaration of title and possession in respect of the suit land. The said suit was dismissed vide judgment and decree dated 06.10.2007, against which, plaintiff Heeramati preferred First Appeal No.1A/2008 before the Additional District Judge, Kunkuri on 30.11.2007. During the pendency of the said appeal, the plaintiff died on 06.02.2011 and defendant No.3 Mularo Bai died on 31.11.2009, however, their death was neither brought to the notice of the first appellate Court nor any legal representatives were brought on record by filing any application and proceeding in the appeal was continued. Consequentially, the First Appellate

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Court passed the judgment and decree in favour of the death person i.e. plaintiff Heeramti on 07.02.2015. Thereafter, the defendants preferred this second appeal.

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Learned counsel for the appellant/defendants would submit that since the impugned judgment and decree has been passed in favour of deceased plaintiff Heeramati and against deceased defendant Mularo Bai, the same is nullity in the eyes of law. He would also submit that prior to the filing of the second appeal, defendant No.2 Mohit Ram also died on 02.04.2015. He submits that, at this juncture the matter may be remitted back to the first appellate Court to decide the same afresh keeping in view the effect of death of the plaintiff Heeramati and defendant Mularo Bai.

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Heard learned counsel for the parties and perused the record.

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Perusal of the death certificate of plaintiff Heeramati, wife of Dular Sai, resident of Tildega, would reveal that the plaintiff died on 06.02.2011 and information in this regard was reported to the concerned Authority on 21.02.2011. In support of the said death certificate, the appellant filed the applications under Order 22 Rule 4 (A) of the CPC and 10-A & 11 of the CPC, which are supported with an affidavit, vide IA No.2/2015 & IA No.7/2017 respectively. Even defendant Mularo Bai died on 31.11.2009. However, the first appeal continued without substitution or implementation of any legal representatives.

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It is well settled that if the plaintiff to the suit dies during the pendency of the appeal, the legal representatives of the deceased party would have be substituted and failure to do so would result in the abatement of the

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proceedings. Therefore, the appeal cannot be proceeded without substitution or implementation of the legal representative.

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In view of the aforesaid discussion, this Court is of the view the judgment and decree dated 07.02.2015 passed in favour of the deceased person i.e. plaintiff late Heeramati Bai is nullity in the eyes of law as she died during the pendency of the first appeal itself on 06.02.2011.

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For the foregoing, the matter is remitted back to the First Appellate Court to pass an appropriate judgment/order keeping in view the effect of death of the sole plaintiff.

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