The legal representatives of a deceased plaintiff can only prosecute the cause of action as originally framed in the suit and cannot agitate their own claims.

Judgement

DAS, J.:- First Appeal No. 145 of 1971 has been filed by defendant No. 3. First Appeal No. 9 of 1972 has been filed by defendant No. 1 (c) and her natural son defendant No. 5 and First Appeal No. 15 of 1972 has been filed by defendants Nos. 1 (a), 2 and 6. The relationship of the parties is to be found from the genealogy given below :-

Nirakar Padhi, a man of a substantial property, left behind two sons - Yudhisthir (original defendant No. 1) and Srinibas. Yudhisthir died during the Pendency of the suit leaving behind two sons and a daughter being Ramanath (defendant No. 2), Radhakrishna (defendant No. 3) and Mahalakshmi (defendant No. 1 (c)). Ramanath s wife Kanchan is defendant No. 6. Mahalakshmi is married to Jagannath and their son Kishore Padhi is defendant No. 5. Srinibas died leaving behind Khalli who met with a premature death in 1942 leaving behind a young widow Urmila. Urmila filed the suit on 25-1-1969 impleading defendants 1 to 3 and asked for the following reliefs:-

(i) Confirmation of partition of Schedule-A properties as evidenced by the deed of partition dated 22-6-1968 (Ext. 1) between defendant No. 1 and herself;

(ii) Alternatively, for partition of Schedule-A properties into two halves and for allotment of one lot maintaining the division in the deed of partition as far as practicable;

(iii) Decree for permanent injunction against defendants 1 to 3 from interfering with her possession in respect of the B Schedule property which had been allotted to her at the partition under Ext. 1; and

(iv) Directing defendants 1 to 3 to deliver 15 cart-loads of paddy or its price towards mesne profits of B schedule property. She averred in the plaint that her husband died in joint status with defendant No. 1 in the year 1942 and she continued to jointly enjoy the properties with defendants 1 to 3 till the partition. She further alleged that after partition she was in exclusive possession of her share. She had executed a deed of settlement in favour of her sister (defendant No. 4) on 31-10-1968 vide Ext. 3. One day prior to the institution of the suit, i.e. on 24-1-1969, she had executed a Will (Ext. 4) in favour of Bhajakrishna Panda son of her brother, in respect of her remaining assets. Yet, in paragraph-1 of the plaint, she categorically pleaded:-

.............. The plaintiff as aforesaid is in peaceful possession of the B schedule properties in her own right........." and she also asked for confirmation of possession and injunction. In paragraph-4 of the plaint, she specifically pleaded that

"The cause of action for this suit arose on 25-12-1968 when the defendants 1 to 3 showed a careless attitude and blocked the paddy..........."

The averment in paragraph 4 clearly meant that notwithstanding the Settlement, Urmila was in khas possession and enjoyment of the property.

Kishore Chandra Padhi claimed to be the adopted son of Khalli and was added as defendant No. 5. When Urmila died, an application was made by Bhajakrishna on the basis of the Will to be added as a legal representative. Ambalika on the basis of the Settlement claimed to be transposed as plaintiff. The learned Subordinate Judge allowed this prayer. The plaint, however, remained in its original form so far as the pleadings are concerned and there was no amendment.

2. Defendant No. 1 died during the pendency of the suit and his daughter Mahalakshmi is substituted along with his two sons Ramanath and Radhakrishna who had already been impleaded as defendants 2 and 3. On the allegation that Ramanath had become insane, his wife Kanchan is permitted to represent his interest. Legal representatives of the defendant No. 1 contended that the family of Srinibas and Yudhisthir continued to be joint till there was a partition on 22-6-1968 and the deed was formally registered on 27-6-1968. Urmila has been assigned six annas interest and the rest ten annas share went to Yudhisthir. Urmila suffered from cancer for some time and ultimately died at Cuttack on the 20th of Ap