Point of Law: Merely because the evidence of respondent/defendant and Prabhakar Rao (PW-2) was not repeated all over again, it cannot be held that the appellant/ plaintiff could be non-suited on this ground.

JUDGMENT :

1. Heard Shri Anshul Kumar Singhal, learned counsel for the petitioner and Shri Shyam Sunder Sharma, learned counsel for the respondents.

2. By means of this petition under Article 227 of the Constitution, the petitioner seeks to set aside the order dated 13.01.2015 passed by the Additional Civil Judge (Senior Division), Mathura in Original Suit No. 173 of 1982 and the connected Original Suit No. 254 of 1982 and also the order dated 13.02.2018 passed by the Additional District Judge, Court No. 8, Mathura in Civil Revision No. 64 of 2015.

3. The controversy involved in the present case arises for the two sets of legal heirs of late Goverdhan Dutt claiming to substitute Goverdhan Dutt in the connected suit proceedings. While Original Suit No. 173 of 1982 was instituted by the present petitioner seeking permanent prohibitory injunction against Goverdhan Dutt, Goverdhan Dutt also instituted a suit being Original Suit No. 254 of 1982 against the present petitioner seeking the relief in the nature of mandatory injunction and a consequential relief for restoration of possession of the suit land. Both the above suits came to be connected for the purposes of adjudication and disposal.

4. It is during the pendency of above suit proceedings, Goverdhan Dutt died. While Smt. Babli @ Chitra, daughter of one Jai Prakash Hada was claimed by the present petitioner, to be legal heir of late Goverdhan Dutt as grand daughter of late Goverdhan Dutt, in the suit filed by late Goverdhan Dutt being Original Suit No. 254 of 1982, the respondent nos. 2, 3 & 4 herein in this petition, filed an application seeking substitution/ impleadment to continue the suit proceedings as heirs and legal representatives of late Goverdhan Dutt. The objections were filed by the l respective parties qua two substitution applications.

5. The trial court in its judgment found it to be appropriate to allow both the rival parties to be parties in the suits as legal representatives of Goverdhan Dutt for the purposes of continuation of suit proceedings instead of adjudicating the issue of right of the parties to be substituted exclusively as heir/legal representative of late Goverdhan Dutt. Against the said order, revision was filed by the present petitioner which also came to be dismissed.

6. Learned counsel for the petitioner submitted that it was a duty cast upon the court to determine the issue of legal right to be heir/ legal representative of a party in the event of dispute being raised, under Order XXII Rule 5 of Code of Civil Procedure, 1908 (in short ‘CPC’) as it provides for the same. Learned counsel for the petitioner argued that determination of rights of a person to be heir/ legal representative of a deceased party in the suit, can be very well determined by permitting the parties to lead evidence in support thereof. He submits that the proviso to Rule 5 of Order XXII CPC is clearly of indicative of the intendment of legislature that the court concerned should decide the controversy of heirship, if any raised and, therefore, according to him the trial court was not justified in allowing the substitution application of both the claimants to substitute the deceased defendant in one suit and as plaintiff in another connected suit. According to learned counsel for the petitioner, the legal principles had been wrongly interpreted by the trial court. He also submitted that the court revising the order of trial court, simply confirmed the order without recording any independent finding on the question as to legal representative, as mandated Order XXII Rule 5 CPC.

7. Per contra, it has been submitted by learned counsel for the respondents that the legal position was that any application in suit or appeal by a party to substitute the deceased in a suit or appeal for that matter, was only for the purposes of adjudication of the case, meaning thereby, the suit proceedings were to be brought to their logical end and were not to be lingered on for technical pleas as to who