A suit for specific performance of contract is not maintainable in the absence of the vendor or his legal representative being party to the suit.

1. This is plaintiff"s petition against order of the court below abating the suit as a whole by refusing to substitute the heirs of defendant 1, the vendor. This revision arises out of a suit for specific performance of contract. Defendant 2 is the subsequent purchaser from the principal vendor, defendant 1, who is now dead.

2. An application for substitution in the court below was filed on 2-1-1976. According to the case of the plaintiff, defendant 1 died on 2-10-1975 whereas according to the defendant the date of death is 18-9-1975. If the date of death is 18-9-1975, the application for substitution was barred by limitation whereas if the date of death is 2-10-1975, which is the case of the plaintiff to be the correct date, the petition for substitution was in time.

3. In support of the respective cases of the parties, evidence has been led by both sides oral as well as documentary. Defendant examined many witnesses and filed the Death Register (Exhibit A) in support of his assertion that the date of death is 18-9-1975. On behalf of the plaintiff witnesses were examined including the Purohit, who is said to have participated in the Shradh function and according to them the defendant died on 2-10-1975. The courts below have considered the oral evidence and concluded that the date given by the defendant is correct. In support of the said conclusion the courts below relied upon Exhibit A, the death register. The trial court after having held the date furnished by the defendant to be correct and refusing substitution of the legal representative of defendant 1 concluded that the suit has abated as a whole. As against that the plaintiff preferred an appeal and the appellate court refused to interfere with the findings of fact recorded by the trial court and affirmed the judgment of the trial court.

4. Mr. Kapildeo Singh, appearing for the plaintiff, contended that the judgment of the court below is vitiated because of reliance on Exhibit A i.e. the death register. According to learned counsel the entry in the death register was not made by the Choukidar but by the Gram Sevak and, therefore, it is not an entry in consonance with the requirement of S.35 of the Evidence Act. Learned counsel in support of his contention has relied on the case of Brij Mohan V/s. Priya Bhat AIR 1965 SC 282 and on the case of Jaladhar Samal V/s. Malati Dei AIR 1971 Orissa, 230. Learned counsel further contended that even if the substitution was not allowed, the courts below were not correct in abating the suit as a whole because in the eye of law defendant 2, the purchaser, who is a necessary party to the suit, will be deemed to represent the estate of the deceased vendor and a decree as against him could always be granted because of the devolution of the interest of the property unto him.

5. Learned counsel appearing for the opposite party contended that Exhibit A, the death register, is a register, which is required to be maintained under the Bihar Panchayat Raj Act, 1947 , which is manifest from the duties prescribed under S.15(c) of the Act. He further contended that the entry has been made by the Gram Sevak, who is a public servant and not as was in the case of Brij Mohan Singh (AIR 1965 SC 282) (supra) where the entry was made by a person, who was not a public servant and it was not his duty to make entry. It was contended that it was the duty under the Gram Panchayat Act to maintain the register and the Gram Sevak, who is the officer of the Gram Panchayat, is empowered to make the entry. As in this case the said entry was made by the Gram Sevak, a public servant, the entry is very much admissible and the courts below acted within their jurisdiction to rely upon the said register. He also contended that there is no force in the second limb of the argument of the petitioner that the suit can still proceed against the purchaser and in support of the said submission learned counsel relied upon the case of Chhotalal Hariram V/s. Dilip Kumar Cha