The central legal point established in the judgment is the application of Order XXII Rule 5 of the CPC in determining the legal representation of the estate of a deceased party in a suit, especially in the case of a disputed issue of fact.

VALMIKI J. MEHTA, J.

1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment of the First Appellate Court dated 5.10.2006. By the judgment dated 5.10.2006 the first appellant court held that issue no. 5(b) framed by the trial court with respect to the parentage of one of the plaintiff Sh. Mohinder Bal (respondent no.1 in this appeal, and who is now deceased and represented by his legal heirs) ought not to have been framed and no finding could be given with respect to issue no. 5(b),

and which issue is left to be decided in appropriate independent civil proceedings.

2. The subject suit was a suit for possession filed by one Smt. Sham Pyari for part of property bearing no. 3068-69, Sir Sayed Ahmed Road, Darya Ganj, Delhi. During the pendency of the suit Smt. Sham Pyari died on 7.3.1968. Smt. Sham Pyari died issueless and her husband had already pre-deceased her. The suit property, therefore, survived as per the Hindu Succession Act, 1956 on collaterals of Smt. Sham Pyari. Sh. Mohinder Bal is one of the legal heir of the collateral as he claimed to be the son of one of the deceased sister of the original plaintiff Smt. Sham Pyari. Issue no. 5(b) was framed because Sh. Mohinder Bal, who was substituted as one of the plaintiffs in place of Smt. Sham Pyari, claimed that he was the son not of Sh. Tara Chand, who was brother of Smt. Sham Pyari, but that he was the son of Sh. Inder Bal who was the husband of the deceased sister Smt. Soma Devi of Smt. Sham Pyari.

3. Issue no. 5(b) has been decided by the trial court in its judgment dated 6.7.1983 by observing as under:-

“Issue No. 5(b)

Mahinder Bal plaintiff who is PW2 in this case claims himself to be the son of Inder Bal. He has stated that Shri Tara Chand was his uncle. He is supported in his statement by PW Jyoti Sarup, another son of Tara Chand, and from the service record of Mahinder Bal produced by PW V.K. Sood. Mahinder Bal, however, admitted in his statement having lived in house No. 8182, Chimni Mill, Bara Hindu Rao, Dehli with Tara Chand before shifting to the suit premises. He further stated that he had no brother and his father had a verified claim which was included in the sale deed in which his parentage is mentioned as of Inder Bal. The sale deed is Ex. P6 W1/3. In the ration card Ex.P6W1/4 his parentage is given as of Inder Bal. All the above record is after the record of the school and college. As per college record produced by PW Kishan Lal, Clerk of Hindu College, Amritsar Ex.PW1/1 his parentage is given as of Tara Chand, and the date of birth is 28.9.24. His statement was not controverted in cross-examination by Shri Mahinder Bal. He has stated that he was nine years old in 35, but he could not be so in view of his date of birth given above. Shri Inder Bal has given his parentage through his advocate in reply dated 21.3.71 as of Tara Chand which is Ex.PW2/4. It was a typing mistake, as stated by Mahinder Bal, he did not get it corrected. There is no certificate from the Custodian that he is the son of Inder Bal. In my view Shri Mahinder Bal is bound by his admissions of the college record as well as vakalatnama which were prepared at his instance. In the post card of September, 1942 which is a document more than 30 years old and requires no proof, the parentage is given that of Tara Chand. There is no horoscope or birth certificate filed by him. In my view, the college record which is prior in time and which has more evidentiary value should be referred before the other evidence discussed above. So the parentage of Mahinder Bal is not that of Inder Bal, but that of Tara Chand, and the said issue is answered accordingly.”

4. The suit was decreed by granting the following relief:-

“Relief.

In view of my above discussion on all the issues the suit of the plaintiffs for possession is decreed with costs against the defendants and a decree for possession is passed in their favour against the defendants from a part o