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High CourtsSingle Bench(2006) 05 PAT CK 0050

Yogendra Yadav, Mahendra Yadav and Ramraj Yadav vs The State of Bihar and Others

Patna High Court · Decided on 9 May 2006 · Citation: (2006) 3 PLJR 164

HON’BLE JUDGES
Chandramauli Kr. Prasad, J
RESULT
Allowed
CASE NUMBER
Criminal Miscellaneous No. 15249 of 2002

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Judgment

9 paragraphs · 367 words

Chandramauli Kr. Prasad, J.—Ist party, namely, Doman Yadav claimed right of easement over northern portion of Plot No. 524 of village Sipah, P.S. Arwal in the district of Jehanabad in a proceeding u/s 147 of the Code of Criminal Procedure. The Executive Magistrate Jehanabad, by order dated 2.9.1990 passed in Case No. 1040/M/1983 (Trial No. 84/90), rejected his claim and held that there exists no raasta as claimed by the (Ist party, The Ist party, Doman Yadav, aggrieved by the same, preferred Cr. Revision No. 69 (J) 97/77 of 1994. The Ist Additional Sessions Judge, Jehanabad, by order dated 11.12.2001, set aside the aforesaid order and remitted the matter back for consideration in accordance with law.

2.

The 2nd party in the proceeding was Nandkeshwar Yadav and petitioners claim to be his successors in interest.

3.

Aggrieved by the aforesaid order, petitioners have preferred this application. It is the assertion of the petitioners that 2nd party in the proceeding, namely, Nadkeshwar Yadav died on 22.11.2001 and further 1st party, namely, Doman Yadav also died on 2.9.1995 and in the revision application, their heirs were not substituted and revisional court had passed the order against dead person.

4.

Inspite of service of notice on opposite party No. 3, nobody has chosen to appear on her behalf. However, opposite party No. 2 has appeared and she does not deny the aforesaid assertions.

5.

In view of aforesaid, there is no escape from the conclusion, that the Ist party and the 2nd party in the revision application, were dead and their heirs were not substituted in the revision application.

6.

Mr. Mahesh Prasad, appearing on behalf of the petitioners, submits that the order of the revisional court has been passed in favour of a dead person as also against a dead person and thus a nullity.

7.

Mr. Gopal Sharan, appearing on behalf of opposite party No. 2, concedes that the order has been passed for hand against the dead persons and thus, same is nullity.

8.

In view of the stand of the learned Counsel, order dated 11.12.2001 passed by the Ist Additional Sessions Judge, Jehanabad in Cr. Revision No. 60(J)97/77 is set aside.

9.

Application stands allowed accordingly.