A decision on an application for substitution as legal representative under Order 1 Rule 10 or Order 22 Rule 5 of the Code of Civil Procedure is not res judicata in subsequent proceedings.

Devinder Gupta, J.—The petitioner has come up in revision against an order passed on 15th June 1987, by Sub Judge, Nahan, allowing an application moved by the plaintiff and holding the application filed by the petitioner under Order 1 Rule 10 of the Code of Civil Procedure (hereinafter called as the Code) for being impleaded as a party to the suit to be barred by the principles of res judicata.

2. Plaintiff Shanti Swaroop filed a suit against Smt. Indrawati, claiming a decree for declaration that he alone is owner-in-possession of the suit property and the entries in the revenue record showing defendant Indrawati to be owner as having 1/2 share therein were factually incorrect and not binding upon him. Alternatively, a decree was prayed for declaring him to have become owner of the entire suit property holding the same adversely against the defendant. It was alleged by him that his brother Ram Swaroop died in the year 1998-99 81c. issueless leaving behind the defendant as his widow. She was not entitled to succeed to any property under Hindu Law and Ram Swaroop during his life having surrendered his rights in his favour, he continued occupying the property as sole owner but name of the defendant was wrongly incorporated in the revenue records having succeeded to the estate of the deceased. She had acquired no right, title or interest and he alone was the owner. Otherwise also, having continued to remain in occupation in assertion of his rights, even if defendant had any right the same stood extinguished and his possession had ripened into full ownership by holding the property adversely.

3. The suit was contested by Indrawati, who died on 1st July 1985. On 16th August 1985, an application was moved by the petitioner under Order 1 Rule 10 of the Code seeking to be impleaded as party to the suit alleging that Indrawati had on 21st August 1984 executed a Will pertaining to the suit property in his favour, which had been got registered before the Sub-Registrar at Delhi on 22nd August 1984 and on the basis of the said Will he had inherited the property and was liable to be impleaded as defendant to the suit. The plaintiff opposed this application by denying the due execution of the Will as also the competency of defendant Indrawati to execute the same

4. On the day, when the petitioner filed the application under Order 1 Rule 10 of the Code, another application under Order 22 Rule 3 of the Code was filed by the plaintiff stating that the sole defendant had died. After the death of Ram Swaroop, the defendant had re-married in the year 1948 one Bal Krishan Goel. Accordingly, the defendant had even lost her life interest in the property. In these circumstances, he (plaintiff) alone was the legal representative of the deceased, who was already on record and accordingly a prayer was made for deleting the name of the sole defendant. Reply to this application was filed by the petitioner, who denied the alleged re-marriage of the defendant It was also disputed by the petitioner that the plaintiff was alone the legal representative of the deceased defendant. According to the petitioner, the deceased had left other heirs also including Ramesh Kishore Bansal, Jai Kishore Bansal, Ram Kishore Bansal and Madan Kishore Bansal. In the said reply, petitioner further reiterated the fact that the Will had been executed by the deceased in his favour and he had inherited the estate of the deceased.

5. On 7th April 1986, an issue was framed by the court on the application of the petitioner that as to whether Indrawati bad executed a valid Will in his favour. If so, its effect ?

6. On 16th June 1986, on an application having been moved under Order 14 Rule 5 of the Code, an additional issue was framed that in case the earlier issue was not proved, whether there are other legal representatives of the deceased? Before these applications could be decided, the plaintiff on 20th September 1986, moved an application with a prayer to dismiss the petitioners a