A suit does not abate if at least one legal representative of a deceased party is on record.

1. The substantial question of law formulated on 20/01/2006 and to be answered in this judgment is as under :
' Whether in absence of all the legal representatives of the deceased Bodhan the suit was liable to be abated?'
[For the sake of convenience, the parties will be referred in the instant judgment as were referred in the suit.]

2. Facts and circumstances giving rise to the second appeal are that plaintiff Brijmohan Dua filed a suit before the Trial Court seeking declaration of title and permanent injunction that he is the title - holder and Bhumiswami of the suit land, the auction dated 03/04/1982 is null and void and the defendants be restrained from interfering with his possession.

3. The Trial Court, by judgment and decree dated 15/03/2000, recorded findings that the plaintiff has purchased the suit property by a registered. Sale - deed on 05/06/1968, the auction dated 3-4-1982 held by defendant Nos. 9, 10 and 11 is illegal and the plaintiff is entitled for permanent injunction, but dismissed the suit holding that all the legal representatives of deceased defendant Bodhan have not been brought on record.

4. The plaintiff preferred an appeal under S.96 of the Code of Civil Procedure, 1908 (henceforth ' the CPC - ). The first Appellate Court also did not find favour with the plaintiff and dismissed the appeal holding that the suit has abated.

5. The second appeal filed by the plaintiff under S.100 of the CPC has been admitted for final hearing on the aforestated substantial question of law.

6. Shri Ram Kumar Tiwari, learned counsel appearing for the appellant / plaintiff would submit that one of the legal representatives of deceased defendant Bodhan has already been brought on record and, therefore, the entire suit would not abate.

7. No one has appeared on behalf of the respondents / defendants except the State to oppose the instant appeal and to support the impugned judgment even though notice of this appeal has been served upon them.

8. Deceased Bodhan son of Kashiram was arrayed as defendant No. 17 before the Trial Court. It has been pleaded in the plaint that defendant Nos. 16 and 17 have purchased the scheduled suit property on auction held by defendant Nos. 9, 10 and 11 and a decree has been sought by the plaintiff to declare the auction proceeding as null and void and that defendant Nos. 16 and 17 have no right on the suit property. Defendant No. 17 Bodhan died on 17/11/1995 at village Mangla. An application under O.1 R.10 of the CPC was filed on behalf of one of his sons, namely, Chetanram Rajak and leave of the Court representative stating that he has interest in the scheduled suit property. That application was allowed by the Trial Court on 15/04/1998 and thereafter, Chetanram Rajak was substituted in place of deceased defendant Bodhan in the suit.

9. Chetanram Rajak, who was impleaded as a party - defendant, filed an application under O. 22, R. 4(3) of the CPC stating inter alia that legal representatives of deceased defendant Bodhan have not been brought on record, therefore, the suit has abated. The Trial Court, by order dated 14/07/1998, held that the suit will not abate as a whole and will abate only to the interest of the legal representatives of deceased defendant No. 17 Bodhan.

10. Thus, from the aforesaid narration of the facts, it would emerge that upon the death of defendant No. 17 Bodhan, who was one of the auction purchasers, his one son Chetanram Rajak has been impleaded party defendant in the suit on his application.

11. In Mahabir Prasad v. Jage Ram and Others , 1971 (1) SCC 265 : AIR 1971 SC 742 the Supreme Court held that where in