Point of Law: Personal action dies with the death of the person on the maxim action personalis moritur cum persona. But this operates only in a limited class of actions Ex delicto, such as action for damages for defamation, assault or other personal injuries not causing the death of the parties, and in other cases where after the death of the party the granting of the relief would be nugatory (Girijanandini Devi vs. Bijendra Narain Choudhary), but there are other cases where the right to sue survives in spite of the death of the person against whom the proceeding had been initiated and such right continues to exist against the legal representatives of the deceased who was a party to the proceedings. Order 22 of the Code deals with this aspect of the matter. Rule 1 of Order 22 says that the death of a plaintiff or defendant shall not cause the suit to abate as the right to sue survives. That is why whenever a party to a suit dies, the first question which is to be decided is as to whether the right to sue survives or not. If the right is held to be a personal right which is extinguished with the death of the person concerned and does not devolve on the legal representatives or successors, then it is an end of the suit. Such suit therefore cannot be continued. But if the right to sue survives against the legal representatives of the original defendant, then procedures have been prescribed in order 22 to bring the legal representative on record within the time prescribed.

JUDGMENT :

SANGEETA CHANDRA, J.

1. Heard Sri. Anoop Srivastava, learned counsel for the petitioners, Sri. Upendra Singh, learned standing counsel and Sri. Dilip Kumar, learned counsel appearing on behalf of the Gaon Sabha.

2. This petition has been filed challenging the order dated 13.01.2021 passed by the Deputy Director of Consolidation, Nighasan, Lakhimpur Kheri, in Revision No. 2627 under Section 48(3) of the Consolidation of Holdings Act on an application made by one Muneem Singh dated 07.06.2012, wherein the DDC has found on consideration of all documentary evidence that a fraudulent entry had been made in C.H. Form 45 with regard to the land of Gata No. 1054 ad-measuring 7.70 acres which had continued to be recorded for the past several years as Naveen Parti land and on which the Gaon Sabha, Land Management Committee had granted pattas to several persons including the applicant Muneem Singh.

3. The Land Management Committee Village Teliyar had made proposal on 17.10.2007 to the Sub Divisional Officer Nighasan, which was approved on 13.10.2007 for grant of patta to the applicants Muneem Singh and others of 0.202 hectares each. When the Revenue Officials of the Tehsil concerned tried to hand over possession of the land given on patta, the father of petitioners herein Shiv Prasad stopped them from delivering such possession saying that the land was recorded in his name as Bhumidhar with transferable rights.

4. At the time of grant of leases/pattas, the land had been recorded in Naveen Parti Khata of Gaon Sabha but due to connivance of officials of the Revenue Department, the land was recorded in the name of the petitioner as his Bhumidhari.

5. The petitioners' case is that the order which has been set aside by the DDC was passed on 10.08.1987 in Revision No. 2627 under Section 48(3) in a case filed by Shiv Prasad S/o Balkhera, the father of the petitioners, with regard to Gata No. 1054 M area 1.70 and Gata No. 1026 M area 1.00. The application for recall was filed by the respondent nos. 2 to 5 after 25 years in 2012 and Shiv Prasad after being served notice had also appeared and his counsel had filed his power. The application was dismissed for non-prosecution on one occasion and thereafter its restoration was allowed by the DDC without issuing any fresh notice to Shiv Prasad, as a result whereof he could not appear to plead his case.

6. It has also been submitted by learned counsel for the petitioners that in the meantime the father of the petitioners, namely, Shiv Prasad, the erstwhile tenure holder, died on 20.10.2020 and the order has been passed against a dead person and is thus a nullity in law in view of the observations made by Hon'ble Supreme Court in Jadu Nandan Ram vs. Parsotam Ginning Co. Ltd. AIR 1930 All. 636, which has been relied upon by the Co-ordinate Bench of this Court in the case of Ajeet Gupta vs. Mukteshwari Nigam, 1985 (3) LCD 68.

7. Learned counsel for the petitioners has placed before this Court paragraph-15 of the judgment rendered by the Co-ordinate Bench in Ajeet Gupta (supra), to say that since the order impugned has been passed by the DDC without noticing the fact that Shiv Prasad, the recorded tenure holder was dead, such order cannot be said to have been legally passed and ought to be set aside by this Court.

8. This Court on perusal of the order impugned finds that the applicants therein, the respondent nos. 2 to 5 on being granted patta had approached the Revenue Officials for delivery of possession but when delivery of possession was attempted, the petitioners' predecessor-in-interest had stopped them from taking possession. Thereafter, when the revenue records were examined, it was found that since past several years, the land in question had been recorded as Naveen Parti land but in the Khatauni of 1403 to 1408 Fasli, the name of Shiv Prasad was recorded as Bhumidhar with transferable rights. It came into the knowledge of the applicant that it was on the basis of a entry made in C.H. Form 45. A