Appellate decree passed in favour of or against deceased party without legal representatives substitution is nullity; appeal abates wholly on death of contesting party in possessory suit.

JUDGMENT :

ANUBHA RAWAT CHOUDHARY, J.

1. This appeal has been filed against the judgement and decree dated 04.09.2017 (decree signed on 11.09.2017) passed by learned District Judge V, Dhanbad in Title Appeal No.118 of 2007 reversing the judgement and decree dated 27.06.2007 (decree signed on 09.07.2007) passed by learned Sub-Judge V, Dhanbad in Title Suit No.118 of 1998.

2. The learned counsel for the appellants has submitted that the suit was filed for a declaration of title and recovery of possession with respect to Schedule property, but the suit was dismissed.

3. The plaintiffs had filed the suit for the following reliefs: “(a) For a decree for declaration of title of the plaintiff in respect of the land described in the schedule below and conformation of possession.

a (1) For decree for recovery of possession in favour of the plaintiff by evicting the defendants from the suit land, if the plaintiff is found to have been dispossessed (Amended vide order dt. 21.4.2004)

b) For a decree for permanent injunction against the defendants, their servants, agents and representatives restraining them from interfering on disturbing the possession of the plaintiff over the land mentioned in the schedule below.

c) For costs of the suit.

d) For any other relief or reliefs to which the plaintiff will be found entitled to.”

4. The learned counsel for the appellants has referred to the order dated 12.01.2026 wherein it was recorded that Basir Mian, who was contesting respondent no.1 before the learned 1^st appellate court, and two proforma respondents in 1^st appeal, namely, Juman Mian and Muslim Mian, expired on 16.03.2008, 2008 and 03.11.2010 respectively.

5. The learned counsel has submitted that the suit filed by the plaintiffs was dismissed except in connection with Plot No.352, area 2 decimals, on which the plaintiffs had their house. He further submitted that two of the plaintiffs, namely Yakub Mian and Rafique Mian, both sons of Ramjan Mian, were the appellants before the learned 1^st appellate court, whereas Juman Mian, Munna Mian, Muslim Mian, the remaining three sons of Ramjan Mian, were proforma respondents/2^nd party before the 1^st appellate court.

6. He submits that contesting defendant no.1 and respondent no.1 before the learned 1^st appellate court had expired during the pendency of the appeal and two other persons namely Juman Mian and Muslim Mian had also expired during the pendency of appeal. He submits that the title appeal itself had abated due to non-substitution, and therefore, the impugned appellate judgement is a nullity in the eyes of law, and consequently, the present appeal also cannot proceed. He has relied upon the judgement passed by Hon’ble Supreme Court reported in (2005) 6 SCC 300 (Kishun @ Ram Kishun (Dead) through Lrs. VS. Behari (Dead) by Lrs.), which has been followed by this Court in S.A. No.112 of 2021 (Krit Sao & Anr. Vs. Bhola Sao & Ors.) observing that a decree in favour of a party who was dead or against a party who was dead is a nullity and the following passage from the judgement of the Hon’ble Supreme Court has been quoted as under:-

“6. As rightly pointed out by learned counsel for the appellants and fairly agreed to by learned Senior Counsel for the respondent, the decree passed by the High Court in favour of a party who was dead and against a party who was dead, is obviously a nullity. It is conceded that the legal representatives of neither of the parties were brought on record in the second appeal and the second appeal stood abated. On this short ground this appeal is liable to be allowed and the decision of the High Court set aside.”

7. At this, the learned counsel has also sub