JUDGMENT :

Manoj Misra, J.

Heard Sri S. N. Tripathi for the petitioners; Sri Prem Prakash Sharma for the respondent; and perused the record.

2. Briefly stated the facts giving rise to this petition are as follows: Jagjeevan and Bhagwanti instituted Original Suit No.210 of 1996 against the petitioners for cancellation of sale deed dated 15.11.1991. During the pendency of the suit, Bhagwanti, who was issue less widow of Lakhan (the brother of Jagjeevan), died on 18.11.2009. Later, Jagjeevan also died on 17.12.2010. Ram Naresh Chaudhary (the respondent), by alleging that Jagjeevan had executed a registered Will dated 26.02.2010 in his favour, applied for substitution as legal representative of the deceased plaintiff. The defendants-petitioners opposed the substitution application of the respondent by claiming: (a) that the will is forged, bogus and not executed by the deceased plaintiff; (b) that the respondent was not a natural heir of the deceased plaintiffs as both plaintiffs had left no natural heir; and (c) that the defendants as purchaser of the disputed property alone could represent the estate of the deceased plaintiffs, hence the suit had abated on death of the plaintiffs.

3. By the order impugned, dated 05.07.2012, the trial court, without taking any evidence to prove execution of the Will, allowed the substitution application by observing that since there exist no dispute amongst the heirs of the deceased plaintiffs the respondent, having a registered Will in his favour, is entitled to pursue the suit as a legal representative of the deceased plaintiffs. Against the order of the trial court, Revision No.148 of 2012 was filed by the defendant-petitioners which was dismissed by impugned order dated 25.05.2013 passed by the court of Additional District Judge, Gorakhpur. While affirming the order of the trial court, the Revisional Court observed that the defendants were free to file an additional written statement disputing the Will where after an issue could be framed and decided with the suit.

4. Challenging the orders dated 05.07.2012 and 25.05.2013, initially, Writ C No.55748 of 2013 was filed. Subsequently, in view of the judgment of the Apex Court in Radhey Shyam and another Vs. Chhabi Nath and others, (2015) 5 SCC 423, an application was filed for conversion of the writ petition to a petition under Article 227 of the Constitution of India, which was allowed by order dated 03.11.2017 giving rise to this petition under Article 227 of the Constitution of India.

5. The learned counsel for the petitioners contended that Order 22 Rule 5 of the Code of Civil Procedure, 1908 (for short the Code or CPC) provides that where a question arises as to whether any person is or is not the legal representative of the deceased plaintiff or a deceased defendant, such question is to be determined by the court. It was submitted that in the objection filed to the substitution application, the execution of the Will was questioned; it was claimed that the respondent was not natural heir of the deceased plaintiffs; and it was also claimed that the deceased plaintiffs had left no natural heir hence the suit had abated. Under the circumstances, without holding any inquiry and recording of evidence as regards valid execution of the Will, which was not probated, substitution of the respondent as legal representative of the deceased plaintiffs could not have been directed. It was urged that, as per section 68 of the Evidence Act, 1872, execution of a Will has to be proved by examination of at least one of the attesting witnesses, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. But since no evidence was recorded to prove execution of the Will, the substitution of the respondent on the basis of a Will, which was not proved, is not at all justified and the orders impugned are liable to be set aside.

6. Per Contra, the learned counsel for the respondent submitted that the Will was a registered