Nabi Mian Vs Yakub Mian

All three sons of Muslim Mian All are residents of Village – Jitpur, Tola – Sukudih, P.O. & P.S. – Hariharpur, District - Dhanbad Residents of village – Jeetpur, Tola Sukradih, P.O. & P.S.: Hariharpur, District – Dhanbad

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… … 2^nd Set of Defendants/Proforma Respondents/ Proforma Respondents

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Basir Mian, S/o late Bhaga Mian, R/o village – Jeetpur, P.O. & P.S. – Hariharpur, District Dhanbad (substituted v.o.d. 06.11.2025)

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(i) Sagir Ahmad and

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1

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2026:JHHC:2685

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(ii) Aslam Ansari

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Both sons of Basir Mian and residents of Village – Jitpur, Tola – Sukudih, P.O. & P.S. – Hariharpur, District - Dhanbad

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.. … Respondent/1^st party/Performa Respondents

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Appellants : Mr. A.K. Sahani, Advocate For the Resp. No.2 : Mr. Ankit Burman, Advocate ---

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24 /03.02.2026 This appeal has been filed against the judgement and decree dated 04.09.2017 (decree signed on 11.09.2017) passed by learned District Judge V, Dhanbad in Title Appeal No.118 of 2007 reversing the judgement and decree dated 27.06.2007 (decree signed on 09.07.2007) passed by learned Sub-Judge V, Dhanbad in Title Suit No.118 of 1998.

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2. The learned counsel for the appellants has submitted that the suit was filed for a declaration of title and recovery of possession with respect to Schedule property, but the suit was dismissed.

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3. The plaintiffs had filed the suit for the following reliefs:

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“(a) For a decree for declaration of title of the plaintiff in respect of the land described in the schedule below and conformation of possession.

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a (1) For decree for recovery of possession in favour of the plaintiff by evicting the defendants from the suit land, if the plaintiff is found to have been dispossessed (Amended vide order dt. 21.4.2004)

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b) For a decree for permanent injunction against the defendants, their servants, agents and representatives restraining them from interfering on disturbing the possession of the plaintiff over the land mentioned in the schedule below.

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c) For costs of the suit.

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d) For any other relief or reliefs to which the plaintiff will be found entitled to.”

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2

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4. The learned counsel for the appellants has referred to the order dated 12.01.2026 wherein it was recorded that Basir Mian, who was contesting respondent no.1 before the learned 1^st appellate court, and two proforma respondents in 1^st appeal, namely, Juman Mian and Muslim Mian, expired on 16.03.2008, 2008 and 03.11.2010 respectively.

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5. The learned counsel has submitted that the suit filed by the plaintiffs was dismissed except in connection with Plot No.352, area 2 decimals, on which the plaintiffs had their house. He further submitted that two of the plaintiffs, namely Yakub Mian and Rafique Mian, both sons of Ramjan Mian, were the appellants before the learned 1^st appellate court, whereas Juman Mian, Munna Mian, Muslim Mian, the remaining three sons of Ramjan Mian, were proforma respondents/2^nd party before the 1^st appellate court.

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6. He submits that contesting defendant no.1 and respondent no.1 before the learned 1^st appellate court had expired during the pendency of the appeal and two other persons namely Juman Mian and Muslim Mian had also expired during the pendency of appeal. He submits that the title appeal itself had abated due to non-substitution, and therefore, the impugned appellate judgement is a nullity in the eyes of law, and consequently, the present appeal also cannot proceed. He has relied upon the judgement passed by Hon’ble Supreme Court reported in (2005) 6 SCC 300 (Kishun @ Ram Kishun (Dead) through Lrs. VS. Behari (Dead) by Lrs.), which has been followed by this Court in S.A. No.112 of 2021 (Krit Sao & Anr. Vs. Bhola Sao & Ors.) observing that a decree in favour of a party who was dead or against a party who was dead is a nullity and the following passage from the judgement of the Hon’ble Supreme Court has been quoted as under:-

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“6. As rightly pointed out by learned counsel for the appellants and fairly agreed to by learned Senior Counsel for the respondent, the decree passed by the High Court in favour of a party who was dead and against a party who was dead, is obviously a nullity. It is conceded that the legal representatives of neither of the parties were brought on

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3

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record in the second appeal and the second appeal stood abated. On this short ground this appeal is liable to be allowed and the decision of the High Court set aside.”

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7. At this, the learned counsel has also submitted that since the 1^st appeal was allowed and the suit was decreed by the learned 1^st appellate court as per the relief prayed for in the plaint, it can still be open to the respondents herein, who are representing the plaintiffs, to take steps as per law to have the decree reopened and to bring on record the legal representatives of the aforesaid three persons.

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8. The learned counsel for the respondent no.2, Rafique Mian, who was one of the appellants before the learned 1^st appellate court, does not dispute the fact that the aforesaid three persons had expired during the pendency of the 1^st appeal. In order dated 17.08.2023 itself, it was recorded that respondent nos.3, 5 and 6 had expired and it was also observed that this appeal has abated against respondent nos.3 (Juman Mian), 5 (Muslim Mian) and 6 (Basir Mian).

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9. Considering the nature of relief prayed for in the suit seeking recovery of possession and eviction of the defendants, on account of death of one of the contesting defendants, the appeal could not proceed and the appeal as a whole abated on account of nonsubstitution of the contesting defendant no.1/respondent no.1 and also non-substitution of the proforma respondents (co-plaintiffs). The trial court decree had attained finality in connection with the deceased parties.

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10. Considering the nature of the suit and the fact that the aforesaid three persons had expired during the pendency of the 1^st appeal and Basir Mian, was one of the contesting respondents in the 1^st appeal, who was also one of the contesting defendants in the suit, this Court is of the considered view that the decree passed by the learned 1^st appellate court in favour of parties who were made proforma respondents in the appeal, who were dead, and also against a party who was the contesting defendant and respondent no.1 in the appeal, is a nullity in the eyes of law, and therefore, this 2^nd appeal itself is not maintainable.

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4

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11. Consequently, the impugned judgement dated 04.09.2017 passed in Title Appeal No.118 of 2007 by the 1^st appellate court is itself a nullity.

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12. However, it is made clear that this order will not stand in the way of respondent nos.1 and 2, who were the appellants before the learned 1^st appellate court, to take appropriate steps, as permissible under law, before the learned 1^st appellate court to have the decree reopened and to have the legal representatives of the aforesaid deceased persons brought on record.

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13. This second appeal is accordingly disposed of.

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14. Let a soft copy of this order be communicated to the court concerned through FAX/email.

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(Anubha Rawat Choudhary, J.)

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03.02.2026

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