In partition suits, the appeal abates entirely if any party's legal representatives are not substituted as required, rendering the appeal incompetent.

JUDGMENT :

A.C. BEHERA, J.

1. This 2^nd Appeal was heard from both the sides on 11.01.2024 on the sole formulated question as per Order No.12 dtd.18.12.2023, i.e., whether this 2^nd Appeal shall abate as a whole for non-substitution of the LRs of the deceased respondent Nos.1, 8, 10 and 13 by the appellant or the abatement of appeal shall be limited to the deceased respondent Nos.1, 8, 10 and 13 only.

2. It appears from the record that, this 2^nd Appeal has been preferred against the confirming judgment passed by the 1^st Appellate Court in T.A. No.4 of 1995 wherein, the judgment and decree passed by the Trial Court in the suit vide T.S. No.44 of 1983-I has been confirmed.

3. The appellant of this 2^nd Appeal was the defendant No.1 before the Trial Court in the suit vide T.S. No.44 of 1983-I and he was the sole appellant in the 1^st Appeal vide T.A. No.4 of 1995.

4. The suit before the Trial Court vide T.S. No.44 of 1983-I was a suit for partition.

5. As per the judgment and decree passed by the Trial Court in the suit vide T.S. No.44 of 1983-I, that suit vide T.S. No.44 of 1983-I was decreed preliminarily for partition on contest against the defendant No.1(appellant of this 2^nd Appeal) and ex-parte against the rest of the defendants.

6. According to the judgment and decree passed by the Trial Court in the suit vide T.S. No.44 of 1983-I, the plaintiffs were entitled to get half share from the suit properties and the parties were directed to effect partition by metes and bounds mutually within two months.

7. In that suit vide T.S. No.44 of 1983-I, the respondent Nos.1, 8, 10 and 13 of this 2^nd Appeal i.e. Thipe Bhoiani, Jagatram Bhoi, Haldhar Bhoi and Gunjamati Bhoiani were plaintiff No.1(a), defendant Nos.3, 5 and 8. As per the findings and observations made by the Trial Court in T.S. No.44 of 1983-I, the plaintiff No.1(a), defendant Nos.5 and 8 belong to the branch of Kharbuja Bhoi and defendant No.3 belong to the branch of Laban Bhoi According to the genealogy of the plaint. The plaintiff No.1(a) and defendant Nos.3, 5 and 8 were the respondent Nos.1, 8, 10 and 13 in this 2^nd Appeal, they (respondent Nos.1, 8, 10 and 13) have expired since the year 2004. For non-substitution of their LRs by the appellant, as per law, this 2^nd Appeal was abated against respondent Nos.1, 8, 10 and 13.

Now, the question arises, whether this 2^nd Appeal, which has been preferred against the confirming judgment passed in a suit for partition vide T.S. No.44 of 1983-I shall abate as a whole for the abatement of appeal against the respondent Nos.1, 8, 10 and 13 or not?

8. During the course of argument, the learned counsel for the appellant relied upon the ratio of the decision reported in Chandramohan Ramchandra Patil & Others Vs. Bapu Koyappa Patil (Dead) through his LRs. AIR 2003 (SC) 1754 contending about the abatement of appeal limited to respondent Nos.1, 8, 10 and 13, but not as a whole even for non-substitution of the LRs of the deceased respondent Nos.1, 8, 10 and 13 and argued for keeping the abatement of Appeal limited to the deceased respondent Nos. 1, 8, 10 and 13 only.

On the contrary, the learned counsel for the respondents relied upon the ratio of the decisions reported in (i) Churaman Mahto and others Vs. Bhatu Mahto and others , AIR 1935 Patna 241, (ii) Sunkara Lakshminarasamma Vs. Sagi Subba Raju and others , (2019) 11 SCC 787 , Budh Ram and others Vs. Bansi and others , (2010) 11 SCC 476 contending for abatement of this 2^nd Appeal as a whole for non-substitution of the LRs of the deceased respondent Nos. 1, 8, 10 and 13 by the appellant.

As per the findings and observations made by the Trial Court in issue No.1, the Trial Court has held that, the