Law: Civil Procedure Code (V of 1908)

Section:

Civil Procedure Code (v of 1908), O. XLI, r. 4 and O. XXII- Death of party impleaded causes abatement of appeal so far as such party is concerned-Effect upon appeal, dependent on circumstances of each case-Order XXII attracted-Order XLI, r. 4, enabling provision-[Baij Nath and another v. Ram Bharose and others A I R 1953 All. 565 rel.]   JUDGMENT   CHJWDHURY, C. J.-This appeal has come up before us on account of a reference by our learned brother Sattar, J. as it involves a point of law (namely, whether on account of death of appellant No. 2 all her heirs not having been substituted and brought on record, the whole appeal has become infructuous) on which there is a conflicting decision of Division Bench of this Court.   Facts of the case, shortly stated, are as follows: Defend ant No. 8 Abdul Hamidacquired raiyati interest in the disputed land of R. S. Plots Nos. 5825, 5826, 5829 described in First Schedule to the plaint, comprising a tank and its bank, by a patta, Exh. B, dated 20-10-49.   The watery portion of the tank is covered by R. S. Plot No. 5825 and the northernpart of the western bank is covered by R. S. Nos. 5825 and 5829 and the western part of the northern bank is covered by R. S. Plot No 5826. This northern portion of the western bank and western portion of the northern bank and the watery portion of the tank is the disputed property in the suit.   Defendant No. 8 sold his interest in the tank to defendant No. 9 by kabala Exh. Adated 8-11-49, that is, about 18 days after he got settlement by Exh. B. Defendant No. 9 in his turn made a gift of the watery portion of the tank and part of the homestead situation near about the tank in favour of his wife defendant No. 10 by a deed of gift, Exh. D dated 25-1-54. Plain tiffs purchased from defendant No. 9, 4 annas share in the disputed tank comprising its bank and its watery portion by three kabalas Exhs. 3, 3 (a) and 3 (b) all dated 3-4-54. Defendant No. 1 took settlement of watery portion from defendant No. 10 by a patta Exh. B (1) dated 25-6-54. He also took settlement from defendant No. 9, the disputed portion of the bank by a patta Exh. B (2) dated 28-6-54, that is, three…