I have heard learned counsel for the petitioners and perused the records of this case.

2. No one appeared on behalf of the respondents despite valid service of notice. So far respondent no.9 is concerned, after his death, his name has been expunged vide order dated 13.12.2012.

3. Petitioners seek quashing of the order dated 1.5.2010 passed by the Munsif, Sherghati in Misc. Case No.3 of 2003 by which he has rejected the petition filed on behalf of the petitioners for their substitution in place of the deceased sole petitioner filed under Section 22 Rule 3 of the Code of Civil Procedure.

4. Short facts which would be necessary for consideration of this case are being enumerated as under:

5. The respondents filed a Title Suit No.75 of 1995 for grant of following relief which would be apparent from the certified copy of the plaint produced on behalf of the petitioners at the time of hearing of this case.

“(A) It be declared that plaintiffs are the owners in possession and the Principal defendant has no right to interfere in possession of the plaintiffs in any manner whatsoever.

(B) A decree of permanent injunction restraining the Principal defendant from interfering in peaceful possession of the plaintiffs over the suit land in any manner whatsoever.

(C) Cost of the suit be awarded.

(D) Any other relief or reliefs.”

6. The husband of the petitioner no.1, namely Rajendra Mahto, son of Sita Ram Mahto was impleaded as the Principal defendant in the case. Plaintiff claimed themselves to be owners of the land described in Schedule 1 of the plaint having purchased by virtue of eight registered sale deeds dated 24.7.1975 from Rekhawati Kuer and others and they claimed to have come in possession thereof. The plaintiffs have stated in the plaint that the suit land was garden of predecessors in interest of proforma defendant and subsequently, the garden of the temple which was existing there, was converted into agriculture land. The Principal defendant wanted to create disturbance in peaceful possession of the land in dispute in December,1994 and a proceeding under Section 144 Cr.P.C. was also initiated at his instance. However, the plaintiffs claimed that the police reported that they are in peaceful possession of the suit land. In paragraph-17 of the plaint, the claim of the Principal defendant of being shebait Bataidar have been denied. A written statement was filed on behalf of the defendant no.1 i.e., deceased husband of petitioner no.1 taking a stand that the land in question belongs to the Lord Shiva and a temple of Lord Shiva is standing over the concerned cadastral plot no.2604. Further case of the defendant is that the tenure holders of the aforesaid khata no.1103 had orally donated the entire land to the Lord Shiva for maintenance of the temple and offering Rag-Bhog after a few years of the publication of cadastral survey Record of Rights. Thus, Lord Shiva is the absolute owner of the lands in issue. It has further been stated that the maternal grand father (Nana) of the Principal defendant namely Achchu Mahto was appointed as Shebait for maintenance of the temple by local public and tenure holders of Khata No.1103 in the year 1925-26.

7. The aforesaid Shebait has made certain changes in the nature of land also for the benefit of the deity and was cultivating the lands on batai basis. After the death of the aforesaid Achchu Mahto in the year 1955-56, his son Balchand Mahto was appointed as Shebait. The said Balchand Mahto entrusted the Principal defendant to cultivate the suit property on Batai basis in the year 1960 and to give the produce to the Shebait for maintenance of temple and Rag-Bhog of the deity. In the year 1967-68, the aforesaid Balchand Mahto expressed his desire to quit as Manager and the Principal defendant was appointed as Shebait and he has been cultivating the suit property as bataidar thereafter. The defendant has denied the right, title and interest of the vendors of the plaintiff.

8. However, it has been stated in