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TMI Blog1978 (1) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in Subbayya v. Saminadayyar, (1895) ILR 18 Mad 496. On the other hand, in Sideswar Biswas v. State of West Bengal, (1976) 3 Cal HC (N) 394, Chitta-tosh Mookerjee J. has taken a contrary view. It has been held by Mookerjee J. that an order recording abatement of a suit under Section 57-B is not an appeable order, but it can be challenged by an application under Section 115 of the Code. Mookerjee J. has pointed out that the case of Naimuddin Biswas v. Moniruddin Laskar (supra) has been distinguished and explained by Chakravartti C. J. in a later Bench decision of this Court in Subodh Gopol v. Nilabja Barani Debi, (1955) 59 Cal WN 1056. Further, the learned Judge has pointed out that the decision of the Madras High Court in Subbayya v, Saminadayyar (supra) was considered by the Full Bench of the Lahore High Court in Niranjan Nath v. Afzal Hus-sain, AIR 1916 Lah 245 (FB) where Shadi Lal J. who delivered the judg-ment of the Full Bench observed: When a Court passes a purely formal order recognising the abatement which is a fait accompli, such an order, though virtually disposing of the suit, does not adjudicate upon any rights and cannot be treated as a decree. If on the other han ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in case of death of one of several defendants or of a sole defendant, and the consequent abatement of the suit as against the deceased defendant in case no application for substitution is made within the time limited by law. The order for abatement is purely a formal order in the sense that the Court is not required to decide or even apply its mind to the rights of the parties in passing such an order. When one of two or more plaintiffs dies, the Court is only to see whether or not the right to sue survives to the surviving plaintiff or plaintiffs. In case it finds that such right does not survive and if no application for bringing on the record the heirs of the deceased plaintiff is made within the period of limitation prescribed therefor, the Court will have to record an order of abatement of the suit as against the deceased plaintiff. When the sole plaintiff dies and if the Court finds that the right to sue survives and if the legal representative of the deceased plaintiff does not make any application for bringing him on the record of the suit, an order for the abatement of the suit will be recorded by the Court. The position is the same in the case of death of one of two or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case where, of the several appellants, one died and his heirs or legal representatives were not brought on the record within the period prescribed by law. If the right to continue the appeal did not survive to the surviving appellants alone, the order that would be generally made was that the whole appeal had abated. In such a case, it was observed by Chakravartti C. J., that the Court did not merely record the order that the appeal had abated, but passed an order dismissing it on the ground that the surviving appellants were not competent to prosecute the appeal by themselves, and so if an order of abatement merely recognised the fact that an abatement had taken place it could not operate as a decree, but if upon abatement in respect of one of several plaintiffs or one of several defendants, it was contended that the whole of the suit had abated and the Court determined the question in favour of the contention, there was quite clearly an adjudication on the rights of the parties and such an order would be a decree. The case of Sabitribai v. Jugal Kishore, (AIR 1938 Cal 639) (supra) also relied on by Bhattacharya J. comes within the category of the case as discussed by Chakravartti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the instant Rules are maintainable. 8. We may now consider whether the respective trial courts were justified in directing the abatement of the suits under Section 57B of the Act, Both the suits, out of which these Rules arise, have been instituted by the opposite parties for declaration of their title to the disputed property. In Title Suit No. 143 of 1971, out of which C. E. 1192 of 1975 arises, there is a prayer for a further declaration that the entries in the record-of-rights are erroneous. In the other suit, there is no such prayer relating to entries in the record-of-rights. Indeed, the learned Munsif has observed that the entries in the record-of-rights have been indirectly challenged by the plaintiffs of that suit. The question therefore is, whether a suit would abate under Section 57B of the Act where, in the plaint, the plaintiff prays for a declaration that the entries in the record of-rights are erroneous, or though there is no such prayer, the correctness of the entries is challenged in the body of the plaint. In Ram Barai Shaw v. Srnt. Bibhabati Basak, (1975) I Cal LJ 382, I had to consider to some extent, the scope of Section 57B of the Act and I held as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion of title, a prayer for a declaration that the entries in the record-of-rights are wrong or statements in the plaint, assailing the correctness of such entries, would not bring the suit within the purview of Section 57B of the Act. 10. In most of the suits involving determination of questions of title to lands, the entries in the record--of-rights are challenged by one party and relied on by the other. A plaintiff may come with a case for establishment of his title and in that connection it may be necessary for him to prove that the entries in the record-of-rights are erroneous. If in such suits it is held that Section 57B would apply, leading to the recording of orders of abatement of the suits, we are afraid, there would be no forum or process of law to establish title to land or property, Such cannot be the intention of the legislature. In these circumstances, we are of the view that the trial courts in the respective suits have illegally refused to exercise jurisdiction in holding erroneously that the suits have abated under Section 57B of the Act. 11. In the result, the impugned orders are set aside and the trial courts are directed to dispose of the respective sui ..... X X X X Extracts X X X X X X X X Extracts X X X X
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