An intermeddler who claims to continue the suit on behalf of the deceased has the liabilities and obligations but not the right to continue the suit.

( 1 ) THIS revision under Section 115 of the Civil Procedure Code is by the defendant against the order, dated, 29-8-1961, passed by Shri S. N. Chaturvedi, Additional district Judge, Indore, in Civil Suit No. 61 of 1955, holding that the present respondent, Miss Hamida was a legal representative of the original plaintiff, Wali mohammad for the purposes of continuing the suit under Order 22, Rule 5 of the civil Procedure Code. Wali Mohammad filed the present suit on 30-9- 1955, wherein he claimed an amount of Rs. 29,651/-from the Mills, as also fixation of the bonus amount to him.

( 2 ) AT this stage, we are not concerned with the merits of the defence raised by the petitioner. Wali Mohammad died on 18-9-1959 and an application for substitution was made by the present respondent Miss Hamida on 17-10-1959. That was well within time.

( 3 ) THE defendant Mills contested the application on the ground that the claimant was not the real daughter of the deceased. Wall Mohammad. The question, therefore, arises whether her name could be substituted as a legal representative of the deceased plaintiff.

( 4 ) A legal representative is defined by Section 2 (11) of the Civil Procedure Code as follows:

" 'legal representative' means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the persons on whom the estate devolves on the death of the party so suing or sued. "

It will, therefore, be seen that the term 'legal representative' means not only a person, who in law represents the estate of a deceased person, but , also includes any person who intermeddles with the estate of the deceased, although such intermeddle may not in law represent the estate of a deceased person.

( 5 ) THEREFORE, if the cause of action survives after the death of a party, the provisions of Order 22, Rule 1 of the Civil Procedure Code are attracted. The suit cannot be said to abate if the right to sue survives. Thereafter, the provisions of order 22, Rule 3 and Order 22, Rule 5, Civil Procedure Code would be attracted. The effect of an order, passed under Order 22, Rule 5 would not be to confer on the intermeddler any right or title or interest, if there be none. Such an order is only for the purposes of the suit itself. The right of the intermeddler has to be adjudicated upon independency of such order.

( 6 ) HOWEVER, the learned counsel for the petitioner, urged that the phrase 'intermeddler' would not include a rank trespasser. In this connection attention was invited to a Division Bench case of the Calcutta High Court in Satya Ranjan roy v. Sarat Chandra, AIR 1926 Cal 825, wherein it was held that a person taking away a portion of the property of a deceased man does not get a right to be substituted as a legal representative merely because of his possession of a portion of the property of the deceased in the face of other legal representative, who are in possession lawfully. There can be no doubt that a rank trespasser has no right to claim to continue the suit after the death of a party on account of his unlawful trespass. I do agree with the proposition that a rank trespasser ought not to be allowed to continue an infructuons litigation.

( 7 ) TO the same effect were the observations of Bhide, J. in Jai Kishen Dass v. Karimuddin, AIR 1939 Lah 321 where a decree-holder died leaving a lawful heir and another person was unlawfully in possession of the property. The learned judge, with reference to the definition of a legal representative under Section 2 (11) of the Civil Procedure Code, held that the person in unlawful possession could not be deemed to be a legal representative in the presence of a lawful heir.

( 8 ) THEREFORE, a person in possession of the; estate of the deceased can certainly be proceeded against, although he may not have a legal title. However, such possession does not entitle him to c