JUDGMENT :

Deepak Gupta, J.

On the death of sole plaintiff of the case, namely, Col. Kuldeep Singh, his brother Jaiveer Singh moved an application under Order 22 Rule 3 CPC to replace him as the plaintiff, on the basis of the registered Will in his favour. Though the Trial Court dismissed the application by holding that right to sue did not survive and so, suit stood abated but the Appellate Court upset the said finding and remanded the matter back to the Trial Court to hold an enquiry as per Order 22 Rule 5 CPC by way of the impugned order, which has been assailed by the defendant of the case before this Court by way of the present revision petition.

2. 1 Brief facts of the case are that original plaintiff - Col. Kuldeep Singh filed the civil suit claiming himself to be absolute owner of the suit property. As per him, he had purchased the same in the year 1977 by making payment of the entire sale consideration. His wife Sukhwinder Kaur had expired in May 2020, whereas son Gurpreet Singh had already been given in adoption to Lt. Col. Mohinder Singh. It was pleaded further that in 1979, by moving two applications, he had got added the names of his wife Sukhwinder Kaur and daughter Manveen Kaur (appellant-defendant herein) only to save the tax liability. His request was allowed on 26.04.1979, whereby Sukhwinder Kaur and Manveen Kaur were added as benami holders of the suit property to the extent of l/3rd share each. Plaintiff sought decree of declaration that he is the real owner of the suit property and that name of Manveen Kaur as co-owner was liable to the rectified.

2.2 Before the written statement could be filed by the defendant, original plaintiff Col. Kuldeep Singh expired. Applicant - Jaiveer Singh, claiming to have succeeded to the suit property on the basis of registered Will dated 18.6.2020 in his favour by Kuldeep Singh, moved the application under Order 22 Rule 3 CPC. Defendant opposed the application by challenging the validity of the Will and also by alleging that the Will was surrounded by numerous suspicious circumstances. Trial Court vide order dated 12.7.2022 held that right to sue did not survive on the death of original plaintiff - Col. Kuldeep Singh and that suit stood abated. It was further held that applicant had independent right to claim the suit property on the basis of Will propounded by him and thus, had a separate cause of action. With these observations, the application was dismissed.

2.3 However, in the appeal filed by the applicant, it was held by the Appellate Court vide impugned order dated 18.05.2024 that the order passed by the Trial Court was bad for want of enquiry as required under Order 22 Rule 5 CPC. After observing so, the order passed by the Trial Court was set aside and the case was remanded to the Trial Court to hold enquiry as mandated under Order 22 Rule 5 CPC and determine as to whether or not the right to sue survived after the death of original plaintiff - Col. Kuldeep Singh.

3. Assailing the aforesaid order passed by the Appellate Court, the present Second Appeal has been filed by the defendant of the case. It is contended by the learned counsel that appellant-defendant being the sole natural legal heir of deceased - Col. Kuldeep Singh, therefore, she has inherited the suit property and has become absolute owner thereof and as such, the right to sue did not survive in favour of the applicant. It is also contended by the learned counsel that without setting aside the finding of the Trial Court to the effect that right to sue did not survive, the mater could not have been remanded back to the Trial Court for holding the enquiry. It is also the contention of learned counsel that the right claimed by the applicant on the basis of the Will is a separate cause of action and cannot be agitated in the present suit under the garb of enquiry under Order 22 Rule 5 CPC. With these submissions, he prayed to set aside the impugned order passed by the Appellate Court.

4. Refuting the aforesaid conte