Counsel must ensure legal heirs are recorded during appeals; a decree against a deceased is void.

Hence, present Second Appeal.

2 Heard learned Advocate Mr. Y.G. Somani for appellants. In view of Ashok Rangnath Magar vs. Shrikant Govindrao Sangvikar , (2015) 16 SCC 763 , it is not necessary that the respondent should be heard at the time of admission of the Second Appeal. If the substantial questions of law are arising and they are framed, then only the respondents are required to be called upon by issuing notice.

3 It has been vehemently submitted on behalf of the appellants that during the pendency of the appeal one of the appellants viz. Uttam Appa Lalzare expired on 27.06.2020. This fact was informed to the Advocate of the appellants, however, the learned Advocate for the appellants failed to inform the Court and failed to bring the legal heirs on record. Though there were latches on the part of the Advocate but the First Appellate Court had passed decree against a dead person and, therefore, it is nullity. On this point also substantial question of law is arising. Further, both the Courts below failed to appreciate, though there was a compromise, none of the parties had acted upon it and when the suit was barred by limitation, the plaintiff could not have sought eviction of the appellants from the suit property. Both the Courts below failed to consider that though the revenue record is showing plaintiff as owner; yet, the law is that the revenue entries do not prove title by itself. There was no evidence adduced by the plaintiff to prove the ownership. In fact, the revenue record of CTS No.4091 shows that the State is the owner of that property, which was sufficient to hold that plaintiff is not the owner of that property. The issue in respect of suit barred by principles of res judiciata was also not framed and, therefore, when the substantial questions of law are arising in this case, the Second Appeal deserves admission.

4 Reliance has been placed on the decision in Yashwant Hari Parit vs. Sau. Sunita Ashok Bhandare , LAWS (BOM) 2019 8 220 of this Court at Principal Seat, wherein, the original defendant Nos.4, 8 and 9 died during the pendency of the appeal. They had not filed their written statement and had not contested the suit. The plaintiff had not filed any application to bring the legal representatives on record. Since the respondent No.1 had challenged the validity of the sale deeds executed by the respondent No.2 in favour of those original defendant Nos.4, 5 and 8 and the plaintiff failed to substitute legal representatives or seeking exemption under Order XXII Rule 44 of the Code of Civil Procedure, 1908 , the relief could not have been continued in the suit only against the other defendants.

5 At the outset, as regards the decision in Yashwant Hari Patil (supra) is concerned, it is to be noted that the facts were different. In that case, the First Appellate Court had allowed the Civil Appeal by setting aside the Judgment and Decree passed by the learned Civil Judge Junior Division. That means, the learned Civil Judge Junior Division i.e. Trial Court had dismissed the suit. Another point was that as regards those defendants, who had expired, they had not filed the written statement and contested the suit. Therefore, this Court had observed that the Trial Court in its discretion decided not to act solely on the averments of the plaint and then had called upon the plaintiff to prove her case by adducing the evidence, and when the First Appellate Court reversed that decree, this Court on the basis of decision in Budhram and others vs. Bansi and others , (2010) 11 SCC 476 set aside the Judgment and Decree passed by the First Appellate Court and remanded the case. Here, in this case, the Trial Court had decreed the suit and the First Appellate Court has dismissed the appeal. The present appellants were the appellants before the First Appellate Court, who had the knowledge about death of Uttam Appa Lalzare. If they have not taken any steps, as they themselves were bound to bring his legal representatives, now