1.

The applicant/defendant No. 2 has filed this revision being

aggrieved by order (Annexure A-20) dated 3.8.2021 passed by the

District Judge (28^th), Jabalpur in R.C.S. No. 800023/2015 whereby the

applications filed by defendant No. 3 under Order 23 Rule 1A of Code of

Civil Procedure and under Order 1 Rule 10 CPC read with Section 151

CPC have been allowed permitting her to be transposed as plaintiff; the

application filed by defendant No. 7 Kohinoor Tabacco Private Limited

for dismissing the suit as abated has been dismissed and the application

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filed by defendant No. 1 under Order 22 Rule 4A read with Order 22

Rule 5 CPC has been dismissed.

2.

The facts giving rise to this revision are that plaintiff Jyotsna Devi

Patel filed a suit bearing R.C.S. No. 23A/2015 on 16.4.2015 for partition

and separate possession of House No. 933, New No. 908, Gol Bazar,

Jabalpur and 1/5th share in respect of the agricultural land bearing

Survey No. 55, 64, 68, 79, 84, 118, 117/3, 119/2, 165, 167, 173/1, 172/1,

189/3, 189/1, 203/5 and 86/3 total area 60.52 hectare i.e. 149.56 acres

situated at village Baderakala, P.C. 27, Tahsil Panagar, District Jabalpur

including the houses constructed thereon against the defendants, who are

her sons, daughters and grand son. The applicant/defendant No. 1 and

defendant No. 2 are the sons, defendant Nos. 3, 4 and 5 are the daughters

of the plaintiff and defendant No. 7 is a registered company which is in

physical possession of a portion of the suit House No. 933 as bonafide

purchaser as per registered sale-deed dated 14.4.1972 executed by

Parmanand Bhai Patel and plaintiff Smt. Jyotsna Devi Patel.

3.

In the aforesaid civil suit, defendant No. 6 filed his written statement

on 28.4.2017. Defendant No. 7 filed its written statement on 3.10.2017,

the applicant/defendant No. 2 and defendant No. 1 filed their separate

written statements on 24.10.2017 and defendant Nos. 4 and 5 proceeded

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ex parte in the year 2017. Defendant Nos. 1, 2, 6 and 7 in their written

statements have denied the claim of the plaintiff. Defendant No. 3 in her

written statement filed on 15.11.2017 denied the claim of the plaintiff

and raised some preliminary objections.

4.

During the pendency of the aforesaid civil suit, the plaintiff died on

11.4.2019. Defendant No. 3 Dr. Neena Patel filed an application on

17.5.2019 under Order 23 Rule 1A read with Order 1 Rule 10 and

Section 151 of CPC through her power of attorney Gautam Patel for

transposing her as the plaintiff in the civil suit contending that after death

of the plaintiff, a substantial question has arisen for consideration and

adjudication among the four co-defendants in respect of their respective

share in the suit property.

5.

Defendant No. 1 opposed the application by filing his reply on

12.12.2019 and additional reply on 4.2.2020. Defendant No. 4 filed his

reply to the transposition application on 13.1.2020. Defendant No. 5 filed

his reply to the transposition application on 20.1.2020. Defendant No. 7

filed its reply for transposition application on 21.8.2020.

6.

On 14.2.2020, defendant No. 1 filed an application under Order 22

Rule 4A read with Order 22 Rule 5 CPC contending that the sole plaintiff

has died on 14.4.2019 and no application was filed by any of the parties

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for substitution of legal representatives and as the interest of the plaintiff

and defendants was adverse to each other, the Court may pass order

under Order 22 Rule 4A and determine the question as to the legal

representatives of deceased plaintiff under Order 22 Rule 5 CPC.

7.

The applicant/defendant No. 2 filed his reply opposing the

application for transposition filed by defendant No. 3 contending that the

suit had abated automatically by operation of law after 90 days of

14.4.2019 as no application was filed for substitution of legal

representatives of the deceased sole plaintiff. It was also contended that

the interest of defendant No. 3 was adverse to the plaintiff as she filed a

false criminal case agains