The determination of the legal representative under Order 22 Rule 5 is between the rival legal representatives and does not operate as res judicata. Additionally, the right to protect possession in a suit for permanent injunction is not a personal right that ends with the death of the deceased plaintiff.

Hemant Gupta, J.

1. The defendant-petitioner is aggrieved against the order passed by the learned First Appellate Court allowing the applicant Manjit Inder Kaur to be impleaded as thelegal represetative of the deceased plaintiff-appellant to represent the estate of the deceased.

2. Plaintiff Nirankar Singh Dhillon died on 13.2.2003. Manjit Inder Kaur applicant filed application for impleading herself as the legal representative of the deceased alleging therein that she is the adopted daughter of the deceased by virtue of adoption deed dated 8.01.1957. She has also relied upon the order No.653 dated 7.10.1958 wherein she is recorded as the adopted daughter of deceased Nirankar Singh Dhillon. She has also relied upon the affidavit suffered by the deceased on 26.7.1993 to the effect that the applicant is his daughter. Applicant has also relied upon the identity Card of the deceased wherein the applicant is reflected as the adopted daughter. The First Appellate Court has found that although in the revenue record Manjit Inder Kaur is recorded as the daughter of Onkar Singh but that does not in anyway deprive of claiming herself to be the daughter of Nirankar Singh Dhillon. It has been found that she has got the estate of Onkar Singh not by way natural inheritance but on the basis of will. Thus, the court allowed Manjit Inder Kaur to represent the estate of deceased.

3. The defendant has challenged the said order in the present revision petition on the ground that the first Appellate Court has not conducted any inquiry in terms of the Order 22 Rule 5 of the Code of Civil Procedure and relies upon a judgment of this Court reported as Karamjit Kaur and Anr. v. Gurbant Singh and Ors, (2003-2)134 P.L.R. 707. He has further argued that the applicant has no right to continue with the suit as the suit was for permanent injunction which was a personal right which has come to an end with the death of the plaintiff.

4. After hearing the learned counsel for the parties, I do not find any merit in the arguments raised by the learned counsel for the petitioner. Order 22 Rule 5 reads as under: -

"5. Determination of question as to legal representative.- 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. Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question and to return the record together with evidence, if any, recorded at such trial, its findings and reasons therefore, and the Appellate Court may take the same into consideration in determining the question."

5. A perusal of the said provisions would show that if a question arises as to whether any person is or is not the legal representative, the said question shall be determined by the Court. The question is whether the question which arises for determination is between the rival legal representatives or between the rival parties to the suit? In my view, the question which is required to be determined in terms of Rale 5 of Order 22 is between the rival legal representatives and not between the rival parties to the suit. The legal representatives are impleaded to represent the estate of the deceased for successful contest of the proceedings and therefore, it is the consistent view of this court that the determination of question after inquiry under Order 22 Rule 5 of the Code does not operate as res judicata.

6. This Court has occasion to interpret Order 22 Rule 5 of the Code in Ram Parkash and another v. Smt. Shamkari and Ors., A.I.R. 1968 Punjab and Haryana 293 and Smt. Suraj Kaur v. Shingara Singh and Ors., A.I.R. 1972 Punjab and Haryana 341. In both cases, the dispute which to be determined was between the rival legal representatives and it was held that the Court is required to determine the question that who is legal representative and cann