(1) This is an appeal against the concurrent judgments of courts below decreeing the plaintiffs suit for per-emption.

(2) The facts are these: By a registered sale deed dated March 13, 1967 one. Ismail Rather, sold land measuring 3 kanals under survey numbers 540/min and 507/Min situate in village Chandharoo, Tehsil Pulwama, to Ghani Rather in consideration of sum of Rs. 5,000/- entered in the sale deed. Ahsan Rather pre-empted the sale. During the pendency of the suit Ghani Rather resold the land to Ismail Rather by a registered sale deed dated March 30th 1963. Following this sale the plaintiff, Ahsan Rather, applied for amendment. The amendment was granted by the trial court of Munsiff Pulwama. The amended plaint was submitted on November 23th 1968. Therein an allegation was made that Ismail Rather had died and therefore his son Muma Rather was arrayed as a parry-defendant in his place. Along with the amended plaint an application was made for formal permission to substituted Muma Rather in place of Ismail Rather, it being represented that he was the sole legal representative of the deceased. The defendants filed their objections to the application saying that Muma Rather was not the sole representative of the deceased and that the deceased had also left a daughter who too was the legal representative of the deceased and that the plaintiff had unauthorisedly arranged Muma Rather as party defendant. No orders were made on the application. Instead the suit was tried on merits without any objection from the defendants and eventually decreed by the trial court. The decree was confirmed on appeal by the District Judge Anantnag.

(3) Appearing for the appellants, Mr. Hakim Sadiq argued that no orders have been given on the application for bringing the legal representatives of the deceased-defendant on record, the subsequent proceedings were vitiated and of no effect decree based thereon was therefore not sustainable. In reply Mr. Bhan urged that the defendants having allowed the suit to proceed without any formal orders on the application, as aforesaid, they could not be heard to say now that the proceedings were of no consequence

(4) The essence of a properly constituted suit is that all persons to whom the right to sue belongs and those against whom such right to sue exists should be arrayed as parties to the suit. "Without doing so there can be no final and effective adjudication which is what the law aims at O22 R 5 CPC is intended to serve that object where the plaintiff or the defendant dies during the pendency of the suit. It reads as follows: -

"Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the court."

(5) This rule casts a duty on the court to decide the question as to who the legal representatives of a deceased plaintiff or a deceased defendant are, when such question is raised before it. Where the court postpones the determination of the question or does not determine the question at all the procedure adopted is not regular but illegal. The subsequent proceedings are vitiated and become invalid and the acquiescence of a party to such proceedings cannot render them legal or valid. The position would not, however, be the same where there is no dispute as regards the legal representatives of a deceased plaintiff or deceased defendant and the only infirmity in the proceedings is that there was no formal order declaring them as such. The reason is that the order of the court in such circumstances would be a mere formality nor involving any infraction of O.22 R5 because no dispute can be held to have existed between the parties as regards such legal representatives. I am fortified in my views by the cases reported as Kali Pachi and others Vs. Ramalakshmi , Ammal , Muthammal and ors (AlR 1953 Travancorp-Cochin. 158. Jato singh and another Vs Maid Kour (AIR 1947 Pat, "474), Abdul Wahab and others Vs. Ram

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