Ashok Dubey & Ors. vs The State of Jharkhand

Heard counsel for the petitioner.

Learned Civil Judge (Jr. Division), 1st, Jamshedpur in Misc. Case No.

07/2014 arising out of Title Suit No. 10/2011, has been pleased to allow the

application of the applicants / Respondents herein by which, abatement of the suit

itself on the death of the sole plaintiff was sought to be set aside.

Undisputedly, the plaintiff / father had instituted a suit for recovery of

possession of the suit premises after evicting the two Defendants who are plaintiff''s

son and daughter-in-law. The applicants / Respondents are also sons and one

daughter of the sole deceased plaintiff who sought setting aside of abatement of the

suit itself on the death of the sole plaintiff. The Learned Trial Court finding that

applicants do fall under the category of legal heirs of the sole plaintiff, rejected the

objection of the Defendant / petitioner herein while observing that the Defendants

are also legal heirs of the sole plaintiff. It also observed that merits of the original

record Title Suit No. 10/2011 is not required to be looked into at this stage for

consideration of an application for setting aside the abatement.

Learned counsel for the petitioner submits that applicants / Respondents

being also in the category of legal heirs of the sole plaintiff, cannot pursue the suit

for eviction of the Defendant / petitioner herein as the property in question has not

been partitioned.

This question however is not germane to the issue, when an application for

setting aside of abatement is made on the part of the legal heirs of the plaintiff. The

defendant is equally at liberty to raise the issue in the title suit relating to the

aforesaid question and as to the maintainability of the suit itself in the present form.

However, order in question does not suffer from illegality or non-application of

mind to deserve interference under Article 227 of Constitution of India. Accordingly,

writ petition is dismissed.