Shri P.S. Kono Anal vs State of Manipur and Others

T.N. Singh, J.

By the impugned order dated 30.6.1981, the learned Munsiff, Thoubal, disposed of (by dismissing) the Petitioner''s application made under Order 22 Rules 1 and 3 read with Section 151 CPC for allowing him to represent the deceased Plaintiff in O.S. No. 2 of 1979. In this revision Petition, the validity of the decision rendered is challenged.

The learned Munsiff held that the Plaintiff had brought O.S. No. 2 of 1979 in his own personal right and capacity and not in a representative capacity under Order 1 Rule 8 CPC and in that view of the matter be further held that the Petitioner had no right to represent the deceased Plaintiff, because he was not his successor-in-interest and that he was not a legal heir of the said Plaintiff. The learned Munsiff observed that the oldest son of the deceased Plaintiff as his legal heir may assert his right to the relief which his father claimed in the suit, while the Petitioner, who was an "elected chief" and was not the direct or immediate heir of the Plaintiff, had no right to be substituted in place of the deceased as the right to sue did not survive to him.

There can be no doubt that an applicant who desires himself to be substituted in place of a deceased Plaintiff must establish the fact that the right to sue survived to him as has rightly been held by the Munsiff. Therefore, the moot question is, what right is agitated in the suit. For this, it is necessary to refer to the plaint only and unfortunately the learned Munsiff misdirected himself in not doing so. There is not a single reference to any single averment made in the plaint. Witnesses were examined in the substitution proceeding and their evidence was discussed. What was the evidence is stated; it was to the only effect that the Plaintiff died leaving behind four sons who were alive. The learned Munsiff observed that the Petitioner admittedly being "an appointed chief" had got no personal right to become the Chief and, therefore, could not assert for himself the personal right of another Chief. This finding was wholly unwarranted and only tangeatially related to the main point as will appear from a discussion of the right which was agitated by the deceased Plaintiff on the suit. It was not the right to the Chiefship which was agitated in the suit but the right of the Plaintiff as the chief of the village to hold and possess property of the village as chief of the village for himself and the villagers.

In O.S. No. 2 of 1979, which was pending trial in the Court of the learned Munsiff, during the course of which the sole Plaintiff died, the main Defendants were No. 1, the State of Manipur, No. 2 sub-deputy Collector, Chandel and No. 3, Revenue Tribunal, Manipur. The averment made in the plaint leaves no room at all for doubt that the main contention of the Plaintiff was that schedule "A" land was a "hill village" and the same had been wrongly surveyed because the said village was excepted from the purview of the Manipur Land Revenue and Land Reforms Act, 1960. At para 7 of the plaint it was further stated that schedule ''B'' land, which was referred as the suit land, was a "hill area" and, therefore, no eviction in respect of the suit land could be passed by the Revenue Authorities. There is, therefore, no manner of doubt that the right claimed by the deceased Plaintiff was not the right which would have enured to his own benefit but was a right by which, if established, the entire village would have been benefitted.

The Petitioner had claimed that he was elected chief of the village and further that be was recognised as such by the first Defendant and, therefore, responsibility of looking the interest of the villagers devolved on him. There can be no doubt that he could, therefore, in view of the averment in the plaint discussed above, claim that the right agitated in the suit did survive to him. Indeed, whether or as he was "a chief" elected or recognised, he would definitely be to on intermeddles so for as the deceased Plaintiff''s right agitated in the suit is concerned. If that be the case, there can be no escape from the conclusion that he had a right to claim to be substituted in place of the deceased Plaintiff as his "legal representative" under Order 22 Rule 3. The term legal representative is defined in Clause (11) of Section 2, to mean a person who in law represents the estate of a deceased person, and includes any person, who intermeddles with the estate of the deceased. It is true that the term also includes a person on whom has devolved the estate of a person who had sued in a representatives capacity. But, the mere fact that a person who had not sued as a representative capacity would not take away his right to be substituted as "legal representatives", but in the instance case, this is what, unfortunately, has been held by the trial Court. Learned Counsel for the opposite parties Mr. A. Nilamani Singh, has placed reliance on the decision reported in Phul Rani and Others Vs. Sh. Naubat Rai Ahluwalia, wherein their Lordships Observed that the legal representatives of a land-lord, since deceased, cannot continue the suit for ejectment filed by land-lord on the ground of personal requirement. This was so stated obviously for the reason that they would not have the cause action, which was founded on the personal requirement of the deceased Plaintiff and must perish on his death. There cannot be any dispute with this legal proposition, but the question is, what relevance has this decision to the instant case. Has the cause of action perished on the death of deceased in the instant case ? Nothing has been placed before me to establish that it has so happened. Indeed it could not be, for the simple reason that the right of the villagers for protection against eviction still remained and the cause of action is not extinguished because it is not the right of the Plaintiff himself only that he claimed to protection against eviction, but it was the right of the villagers. Therefore, this decision, in my opinion, does not support the contention canvassed by Mr. A. Nilamani Singh.

For the foregoing reasons, I have no hesitation to hold that the impugned order must be, and is accordingly, set aside. As a result, the Petitioner stands substituted as a "legal representative" of late Kono Anal. However, by this order dent will be caused to the right of any of the legal heirs of the deceased also to be substituted if they so desire. Mr. Th. Priyananda Singh, submits that one of the legal heirs who was examined in the trial Court, has given up his right to be substituted. However, Mr. A. Nilamani Singh submits that there obviously are other heirs as not only one, but there are 3 other sons also of the deceased Plaintiff. Indeed, they must not be deprived of their right to claim substitution. Submission made by both sides are reasonable on this point. Accordingly, in case the remaining three sons of the deceased desire to be substituted it shall be open to them to make appropriate application to the Court below.

With the above observations, this application is allowed and the rule is made absolute. There will be no order as to costs.