IMPORTANT POINT: After death of the plaintiff, if legal heirs are not substituted, the decree in favour of dead person was a nullity.

MOHINDER PAL, J.

1. Present Second Appeal has been preferred against the judgment and order of learned Fast Track Court No. 2 vide which Regular Civil Appeal No. 40 of 2004 preferred by the original plaintiff has been allowed. The original plaintiff has come in appeal as his civil suit being Regular Civil Suit No. 303 of 1993 was partly decreed in his favour.

2. The plaintiff Ahmedsha Bachusha Fakir (present respondent) filed Regular Civil Suit No. 303 of 1993 before the Court of Civil Judge (J.D.) Kalol claiming that he was owner and in possession of the suit land and the defendants (present appellants) have no concern or right to disturb his possession. Ahmedsha Bachusha Fakir died on 9.8.1996, however, LR of the deceased were never brought on record, therefore, the suit was abated but the Court proceeded further and decided the suit on 31st March, 1999 partly in favour of the plaintiff/ present respondent.

3. The present respondent (defendant in the trial Court) preferred the appeal before the District Court, Mehsana being Civil Appeal No. 89 of 1999 against the judgment passed by the learned trial Court, Mehsana. Similarly, son of the original plaintiff also filed civil appeal before the District Court, Mehsana. Because of the change in districts, both these appeals were transferred at District Court, Gandhinagar where new numbers were given as Regular Civil Appeal No. 41 of 2004 and Regular Civil Appeal No. 40 of 2004 respectively. Civil Appeal No. 40 of 2004 filed by the present respondent and Civil Appeal No. 41 of 2004 filed by the present appellant were transferred to the Fast Track Court, Kalol. Fast Track Court, Kalol decided Regular Civil Appeal No. 40 of 2004 on 29.12.2006 though Civil Appeal No. 41 of 2004 was also pending before that Court on that day. The said appeal was decided on 29.12.2006. Being aggrieved from the judgment and decree passed by the Civil Court and by the Appellate Court, the present appellant has come in appeal which is pending for disposal.

4. At the time of entertaining of appeal by this Court, following substantial questions of law have been framed:-

(1) In the facts and circumstances of the case whether decree passed in favour of a dead person and appeal preferred by a dead person are maintainable at law?

(2) In the facts and circumstances of the case whether the trial Court has jurisdiction to decide issue of agricultural tenancy?

5. The facts of this case are not in dispute. However, some of the relevant dates are reproduced as under:-

(i) The date of filing of Civil Suit by the original plaintiff being Regular Civil Suit No. 303 of 1993, dated 27.12.1993.

(ii) Ahmedsha Bachusha Fakir, original plaintiff died on 9.8.1996.

(iii) Civil Suit came to be decided on 31.3.1999.

(iv) Regular Civil Appeal (impugned judgment) decided on 29.12.2006.

6. While arguing on behalf of the appellant, learned counsel Mr. G.C. Mazmudar has submitted that the trial Court as well as Appellate Court could not have decreed the suit and decided the appeal because the sole appellant had died even during the pendency of the suit. It is submitted that Court entirely lacked jurisdiction as one of the parties to suit in whose favour decree came to be passed as the original plaintiff died much prior to the decision of the suit. He further referred to the cross examination of son of the deceased, namely, Bhikhusha, who claimed himself to be the Administrator. Bhikhusha in his cross examination has admitted that his father expired in the year 1996. He further pointed out that against the decision of the trial Court, both sides have come in appeal and appeals being Regular Civil Appeal Nos. 40 and 41 of 2004 were pending for disposal. However, the Appellate Court for the reasons best known decided the appeal of present respondent i.e. Regular Civil Appeal No. 40 of 2004 on 29.12.2006 while keeping the appeal preferred by the present appellant i.e. Civil Appeal No. 41 of 2004 pending. He has also referred to the decision