The main legal point established is the determination of the devolution of interest and legal title based on a Will, in accordance with the relevant provisions of the Civil Procedure Code, Transfer of Property Act, and the Limitation Act.

JAYANT NATH, J.

1. The present petition is filed seeking to impugn the order dated 19.10.2013 passed by the learned ADJ.

2. The brief facts which led to the filing of the present petition are that respondent No.1-Sh.Harbhajan Singh, since deceased filed a suit seeking a decree of possession in respect of the property bearing No.102, Rectangle No.13, Kila No.26/3 situated in village Khuraji Khas, Abadi Jagatpuri, New Delhi. It was the contention of respondent No.1 that he is the owner of the suit property having purchased the same from the erstwhile owner on the basis of agreement to sell dated 22.10.1993, registered GPA, Will, affidavit, etc. The suit was filed in December 2004.

3. The petitioners who are the defendants contested the suit claiming title to the suit property.

4. On 18.10.2011, respondent No.1 Sh.Harbhajan Singh passed away. After his death within the period of 90 days, applicant Sh.Darshan Singh Popli filed an application under Order 22 Rules 3 and 10 CPC seeking permission to prosecute the present suit. It was averred in the application that the deceased Harbhajan Singh had executed a Special Power of Attorney for prosecution of the present suit in favour of the said applicant. It is also averred that the said Harbhajan Singh had executed a Special Power of Attorney, GPA and Will dated 20.12.2003 which are also registered documents along with the agreement to sell etc. for a consideration of Rs.5 lacs in favour of applicant. Based on this application it was pleaded that in view of the death of Sh.Harbhajan Singh, the applicant be permitted to prosecute the suit.

5. The trial court vide its order dated 07.12.2012 noted that the Will dated 20.12.2003 executed by the deceased respondent No. 1 in favour of the applicant came into force only on the death of the deceased Sh. Harbhajan Singh on 18.10.2011. Hence, the court held that though some of the documents executed in favour of the applicant dated 20.12.2003 might have been executed prior to the institution of the suit, however, in terms of Order 22 Rule 3 CPC, the said right to sue survives in favour of the applicant. The trial court also noted that the application has been moved by the applicant within 90 days from the death of Sh. Harbhajan Singh (plaintiff). It was noted that the son of Sh.Harbhajan Singh, Sh. Gurjeet Singh has also filed an affidavit before the court stating that the Will dated 20.12.2003 was executed by his father in favour of the applicant. The court concluded that the Will dated 20.12.2003 gives right to the applicant to prosecute the suit and allowed the application granting rights to the applicant to prosecute the suit.

6. In the appeal filed by the petitioners, the learned ADJ vide impugned order dated 19.10.2013 dismissed the appeal upholding the order of the trial court.

7. I have heard learned counsel for the parties and perused the record. Learned counsel appearing for the petitioner strenuously urged that the impugned order is entirely erroneous and misplaced. It is submitted that as per the documents placed on record, the applicant claims to have become the owner of the suit property on 20.12.2003 i.e. prior to the date of the filing of the suit. The suit was filed in December 2004. Hence, it is urged that the provisions of Order 22 Rule 10 CPC would have no force. It is secondly urged that even otherwise, the present application is filed based on the documents of 2003 in the year 2012. Hence, the present application filed by the applicant was barred by limitation. Reliance is placed on the judgments in the case of State of Kerala vs. Sridevi & Ors. (2000) 9 SCC 168 and Lal Chand Public Charitable Trust v. Delhi Wakf Board & Ors., 2012 (189) DLT 397 to contend that in a case where Order 1 Rule 10 CPC has to be invoked, in terms of Article 137 of the Limitation Act, the limitation of three years would apply. It is lastly submitted that the applicant is only playing tricks with the court. He had appeared as a witness in the suit