Manoher and Another vs Dattaji and Others

This is a revision petition directed against the order of the Munsiff at Omerga, dated 26-7-1950, by which he has declined to entertain the petition filed by the legal representatives of the deceased Plaintiff.

The facts of the case briefly are that Vaijnath the Plaintiff died during the pendency of the suit, and on 28th Shehrewar 1356 Fasli, the Court dismissed the suit on the ground that the Plaintiff is dead. The present Petitioners who are the sons and heirs of the deceased Vaijnath submitted a petition for their being brought on record as the legal representatives of the deceased Plaintiff on 30th Shehrewar 1356F, stating that the deceased died on 18th Amarded 1356F. The Defendants contested this petition stating that the petition was time-barred and that no such petition could lie in view of the nature of the suit. The lower Court after recording the evidence of the parties came to the conclusion that the allegations of the Petitioners with regard to the date of death of the deceased were proved and that the petition was within time, but dismissed the petition on the ground that in view of the nature of the suit, the provisions of Mohammedan Law will apply and as such the petition cannot be entertained.

It is contended before us by the learned advocate for the Petitioners that the suit was filed under the Dastur-ul-Amal Shikmidaran and under the provisions relating thereto under the Revenue law and that it was not a suit based on any provisions of Mohammedan Law. After going through para. 1 of the plaint, we are of the opinion that the suit was based on the Plaintiff''s right under the Revenue Law and that the Plaintiff alleged that in view of the provisions of the Dastur-ul-Amal Shikmidaran, he had a preferential right to purchase the land in question. It is clear that under such circumstances the provisions of Mohammedan Law will not apply. It is no doubt true that under Mohammedan Law it has been held that if during the pendency of the suit, the pre-emptor dies, the suit cannot be continued by his legal heirs. But in this case, as the Plaintiff has based his suit upon the provisions of the Revenue Law, the ordinary rules will apply. We are of the opinion that the petition of the revision-Petitioners should be allowed. We order accordingly and direct that the Petitioners he brought on record as the legal representatives of the deceased and the suit be tried and disposed of according to law. We allow the revision petition, and set aside the order of the lower Court. Costs will abide the result.