Non-substitution of a deceased party's legal representative in an appeal renders the judgment null and void, underscoring the necessity of proper representation in civil proceedings.

JUDGMENT :

D. Dash, J.

The Appellant, by filing this Appeal, under Section 100 of Code of Civil Procedure, 1908 (for short, ‘the Code’), has challenged the judgment and decree passed by the learned Additional District Judge, Balasore, in R.F.A. No.13/92 of 2018/2014.

2. The Appellant as the Plaintiff had filed Title Suit No.93/1998-I in the Court of learned Civil Judge, Junior Division, Balasore for declaration of his right, title, interest, correction of the Record of Right (RoR) in respect of the suit land with further prayer of permanent injunction as against the predecessor in interest of Respondent No.1 to 4, namely Anadi Charan Pradhan, who had been arraigned as Defendant No.5 in the suit, the Respondent No.5 (since dead), the predecessor in interest of Harihar Barik, the original Defendant No.3 and Respondent No.6 (Defendant No.6) as also the State of Odisha. The suit stood decreed. The Defendant No.5 (Anandi Charan Pradhan) being aggrieved by the same, had carried an Appeal under section 96 of the Code. The First Appeal has been allowed.

3. In course of hearing of this present Second Appeal, which had been admitted on 29.05.2019 for answering the substantial questions of law framed; it came to the notice that present Respondent No.5, who was the Respondent No.2 before the First Appellant Court and the Defendant No.2 before the Trial Court had died on 18.05.2018. Therefore, on 08.12.2023 when hearing of this Appeal commenced, this Court framed the following question to be answered first before going to answer the substantial questions of law as had been framed on 29.05.2019. The question so posed is as under :-

“Whether for non-substitution of the legal representative/s of the Defendant No.2 before the First Appellate Court, the hearing of the Appeal when had been taken up and the judgment and decree have been passed; whether those judgment and decree of the First Appellate Court would be rendered nullity?

4. Heard Mr. R. K. Mohanty, learned senior counsel for the Appellant and Mr. S. K. Mishra, learned senior counsel for the Respondent. Perused the written notes of submission.

5. Keeping in view the submissions made, I have gone through the judgments passed by the Courts below as also the rival pleadings for the purpose of addressing the above question.

6. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Suit.

7. The Plaintiff in the suit had arraigned Ramachandra Barik as the Defendant No.2. It is stated that the Ramachandra Barik became the absolute owner of the suit land by purchasing the same from Sundarmani Dei by registered sale deed dated 05.08.1960 and accordingly, Ramachandra Barik became the absolute owner of the suit land and accordingly, rent was fixed in his name under section 8(1) of Odisha Estate Abolition Act, 1951 (for short, “the OEA Act”) vide order passed in OEA Case No.837 of 1963-64 and the rent schedule was issued in his name who was paying rent for the suit land. The Plaintiff claims to have purchased the suit land from that Ramachandra by registered sale deed dated 01.12.1975 for valuable consideration and to have entered into possession over the suit land. It is stated that the land has been erroneously recorded under Bebandobasta Khata in the name of Defendant No.3 to 4 without preparing the same in the name of the Plaintiff under Stitiban Khata.

8. The suit was decreed by the following order:-

“It is declared that the suit land is the purchased property of the plaintiff and the publication of M.S.R.O.R. in the name of Defendant Nos.3 & 4 in “Bebandovas