IMPORTANT POINT
In partition suits, the principle of transposition allows for the substitution of legal heirs even if some parties have died, provided the title is not in dispute, and a decree passed against deceased parties is not automatically void if not challenged.

JUDGMENT :

HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD

1. The instant civil misc. petition has been filed under Article 227 of the Constitution of India, wherein the order dated 10.05.2022 passed by the learned Senior Civil Judge-I, Sahibganj in Title Suit No. 17 of 2010, whereby and whereunder, the learned trial court has allowed the petition filed on behalf of the defendant dated 15.012022 whereby and whereunder, the ground has been taken that since the preliminary decree has been passed against the dead person, as such, the entire decree suffers from the principle of nullity. Another petition was filed under the provision of Order 22 Rule 3 and 4 of the CPC on 28.02.2022 seeking prayer therein that the parties who have died were alive at the time of institution of the partition suit no. 17 of 2010 and during pendency of the suit, the parties died but no substitution petition could be filed since the suit has not been filed by a dead person against a dead person so the judgment of decree passed by the original court has got no legal sanctity. The petition dated 15.01.2022 has been rejected while the petition dated 28.02.2022 has been allowed.

2. The brief facts of the case as per the pleading made in the petition which requires to be enumerated, read as under:

That the plaintiff filed Title Suit No. 17/2010 for a decree of preparation of preliminary partition of half share in a suit after appointment of Survey knowing Amin Commissioner and delivery of possession to the Court in which the defendants have appeared and contested the matter and stated that Lalu Sah had acquired suit property on his own labour and contested the suit but the Ld. Trial Court after framing the issues i.e. Issue no. 4 and 5 about unity of title about possession and entitlement of plaintiff half share and after going through the documentary as well as oral evidence the Trial Court has decreed the suit in favour of plaintiff which was on contest by defendant no. 1 to 4, 11 to 14 and ex- parte against rest defendants.

That the contesting defendants had preferred Civil Appeal No. 22/2018 including the legal heir of Girish Sah and also filed an application 27.09.2018 stated therein on that plaintiff no. 7 Radhia Devi died on 05.08.2017, defendant no. 2 Dukhni Devi died on 10.08.2014 and defendant no. 7 Girish Sah died on 11.10.2011 when the Ld. Principal District Judge rejected the said appeal on 14.01.2020 with a finding that the Title Partition Suit No. 17/2010 was proceeded by dead persons against dead persons that too before the judicial records arrived stage of final argument.

That the petitioner after getting the knowledge of death of parties of the suit, defendant nos. 1 to 4 and 11 to 14 filed an application on 15.01.2022 about the death of the parties stating that judgment and decree become void in original suit and cannot be implemented and prays for rejection of operation for appointment of Pleader Commissioner and the plaintiff filed the rejoinder to the said petition on 10.03.2022 stated that defendant has made the wrong submission in Civil Appeal No. 22/2018 and the appeal was dismissed without admitting the same thus plaintiffs did not get a chance to present the real fact although the plaintiffs filed substitution petition on 28.02.2022 to bring on record the legal heir of plaintiffs and defendants and also filed a petition u/s 5 of Limitation Act praying to reject the petition dated 15.01.2022.

The plaintiffs filed an application under order 22 rule 3 and 4 C.P.C. on 28.02.2022 stating about the death of the parties. Thereafter, the contesting defendants filed rejoinder to the substitution petition on 10.03.2022 and the civil appeal no.22/2018 was dismissed on the ground that dead persons has proceeded against the dead persons in original suit.

The learned court after hearing the parties on the petition for substitution as well as application dated 15.01.2022 and its rejoinder, had allowed the substitution of the legal heirs of the parties vide orde