Dwarika Sharan Mahto v. Radha Ram And ORS
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.235 of 2008 ====================================================== Dwarika Sharan Mahto son of late Sheodutta Mahto resident of villageMahthu, P.S.-Obra, District-Aurangabad. .... .... Appellant/s
Versus
1. Radha Ram son of late Dwarika Ram.
2. Manrajia Devi wife of late Tilak Ram both residents of villageMahthu, P.S. Obra, District-Aurangabad.
3. Mandodari Devi, wife of Lakhan Ram, resident of villageDaudnagar, Tola P.S. Daudnagar, District-Aurangabad.
4. State of Government through collector, Aurangabad. .... .... Respondent/s ====================================================== Appearance :
For the Appellant/s : Mr. Sanjay Kumar Mr. S.K.Bhatnagar For the Respondent/s : Mr.
====================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL ORDER 16-04-2015 Nobody appears on behalf of the appellant. The learned counsel for the respondent nos. 1 and 3 is present. Perused the office note from which it transpires that this appeal has abated as against deceased respondent no. 2 and the matter has now been placed for consideration as to whether the appeal will become incompetent after its abatement against the respondent no. 2.
The plaintiff in the suit is the appellant in this appeal against the judgment and decree of affirmance. From the perusal of the judgments of both the courts
Patna High Court SA No.235 of 2008 (9) dt.16-04-2015 below, it transpires that the deceased respondent no. 2 was one of the defendants in the suit and has contested the suit by filing written statement. The suit has been dismissed and thereafter the appeal preferred by the plaintiff-appellant has also been dismissed. There is no material on record to show that the relief sought for in the suit was severable as against the deceased respondent no. 2, rather it appears that the claim of the plaintiff as against all the respondents was same.
In this view of the matter, after the abatement of this appeal against the respondent no. 2, the proceeding further in the appeal may result inconsistent order and decree. As such, this appeal is held to be incompetent and is dismissed accordingly.
(V. Nath, J) Devendra/- U