ORDER

14.12.2022 Heard Ms. R. Choudhury, learned counsel for the appellants/defendant as well as Dr. G.J. Sarma, learned counsel for the respondent Nos. 1.1 to 1.11 and

2/plaintiffs. None appears for the proforma respondent Nos. 3 to 6.

2. This appeal under Section 100 read with Order XLII of the CPC has been preferred against the order, dated 24.09.2019, passed by the learned Civil Judge, Dhubri in T.A. No. 54/2010, whereby rejected the prayer of substitution of the legal heirs of the deceased sole appellant and respondent No. 1 and thereby maintained the dismissal of the Title Appeal on the grounds of barred by limitation and abatement by order, dated 12.06.2015.

3. Upon hearing the learned counsel for both sides, the appeal is admitted on the following substantial questions of law-

“1.Whether the learned First Appellate Court committed perversity by not allowing the substitution of sole appellant and respondent No.1 on the ground of technicalities whereas various decisions of Supreme Court held that a liberal approach should be taken in deciding substitution and condonation matters?

2. Whether the learned First Appellate Court is correct in curtailing the right of first appeal of the appellants only on the ground that they could not substitute the deceased parties in time with proper applications for substitution of their legal heirs, but failed to consider the various judgments passed by various courts on the point of application for substitution? ”

4. The appellants/defendant contested the suit being Title Suit No. 185/1992 instituted by the respondents/ plaintiff through Abul Kashem Maker and Mossadar Rahman in the Court of learned Munsiff No. 1, Dhubri praying for a judgment and decree declaring their right, title and interest over the Schedule-B land and recovery of khas possession in respect of Schedule-D land being part of the aforesaid Schedule-B land as well as permanent injunction restraining the appellants/defendant from taking possession of the Schedule-B land by dint of decree in T.S. No. 108/79. After adjudication, the learned trial Court decreed the said suit vide Judgment and Decree, dated 27.07.2010. Being aggrieved, the appellant/original defendant preferred a Title Appeal being T.A. No. 54/2010 against the aforesaid Judgment and Decree, dated 27.07.2010, passed in T.S. No. 185/1992 in the Court of learned Civil Judge, Dhubri. During the pendency of the said appeal, the appellant Abdul Khaleque expired on 23.10.2012 and accordingly, the appeal stood abated. Thereafter, the heirs of the appellant filed substitution petition on 06.02.2013 beyond the prescribed period of 90 days. But, the learned appellate Court by its order, dated 12.06.2015 dismissed the appeal on the ground of being barred by limitation. Therefore, the appellants/defendant filed CRP No. 376/2015 challenging the aforesaid order of dismissal of the substitution petition, dated 12.06.2015 before this Court and this Court by order, dated 02.09.2015 directed to the effect that the petitioner shall be at liberty to file appropriate application before the First Appellate Court and if such application is filed, the learned Court was directed to decide the same on merit in accordance with law. Pursuant to that order, two petitions, dated 16.10.2015, were filed before the learned Appellate Court for setting aside the abatement of the appeal. The learned trial Court, after hearing the learned counsel for both the sides rejected the aforesaid two petitions for substitution of the legal heirs of the deceased appellant and respondent aforementioned by the impugned order, dated 24.09.2019, which is extracted hereinbelow (operative portion)-

“From the CR, it appears that on 09/04/11 the Court was informed about death of respondent No.1 by the Ld. Counsel of the respondent vide petition No.555 and this Court directed the appellant to take step for substitution of legal heirs of deceased respondent No.1. Hence it is totally false that the respondent’s side has not