IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SMT. JUSTICE ANURADHA SHUKLA rd ON THE 3 OF APRIL, 2024 CIVIL REVISION No. 1015 of 2023 BETWEEN:-

RAMJI PANDEY S/O LATE SHRI AWADH PRASAD PANDEY, AGED ABOUT 62 YEARS, OCCUPATION: SERVICE/AGRICULTURE R/O VILLAGE NAIKIN, POST AND TEHSIL RAMPUR NAIKIN, DISTRICT SIDHI (MADHYA PRADESH)

.....PETITIONER (BY SHRI MRIGENDRA SINGH WITH SHRI SOURABH PATHAK -

ADVOCATES)

AND

1. LATE SHRI DWARIKA PRASAD PANDEY THROUGH LRS -

(1A) RAJEEV KUMAR SHUKLA S/O SHRI RAMPRAKASH SHUKLAM, AGED ABOUT 40 YEAR S , OCCUPATION: AGRICULTURE R/O VILLAGE NAIKIN, POST AND TEHSIL RAMPUR NAIKIN, DISTRICT SIDHI (MADHYA PRADESH)

2. STATE OF M.P. THROUGH COLLECTOR SIDHI DISTRICT SIDHI (MADHYA PRADESH)

.....RESPONDENTS (BY SHRI RAJESH KUMAR TIWARI - ADVOCATE FOR THE RESPONDENT) This revision coming on for admission this day, the court passed the following:

ORDER

This civil revision has been filed by the applicant to challenge the order passed by CJ-II, Rampur Naikin, District Sidhi in RSCA No.110A/2017 on 13.09.2023 whereby the application under Order 22 Rule 3 CPC filed by the Signature Not Verified Signed by: DEVESH K respondent No.1A (Rajeev Kumar Shukla) was allowed.

2. Brief facts of this case are that, a civil suit was filed by Dwarka Prasad Pandey against applicant (hereinafter referred to as defendant No.1) for the relief of declaration of injunction an possession. During the pendency of civil suit Dwarka Prasad Pandey, the sole plaintiff, died and the application was moved on 02.07.2021 by the respondent Rajeev Kumar Shukla claiming himself to be the sole legal heir of Dwarka Prasad Pandey on the basis of a will executed on 06.11.2017 by Dwarka Prasad Pandey. This application was vigorously opposed by the defendant No.1 claiming himself to the the LR of deceased Dwarka Prasad Pandey on the basis of another will. He also challenged the execution of will which was being relied upon by the respondent. 3. The learned trial judge after considering the dispute on the basis of arguments, allowed the application of respondent and permitted him to be substituted as the legal representatives of deceased plaintiff Dwarka Prasad Pandey.

4. In this revision petition the defendant No.1. has raised the ground that the property was already transferred to him by Dwarka Prasad Pandey, hence, no application under Order 22 Rule 3 CPC could have been allowed. Further, the will was obtained after exercising undue influence and playing fraud upon the deceased. It is also claimed that the will was not proved and still it was acted upon by the trial Court. It is therefore prayed that the impugned order be quashed and the suit should be dismissed as abated.

5. Respondent has opposed this civil revision.

6. Arguments of both the parties have been hears and the record is perused.

7. It is argued by both the parties through their counsel that the defendant No.1. and respondent both are the nephews of the deceased and they are the Signature Not Verified Signed by: DEVESH K heirs of common category. In this backdrop the will relied upon by the respondent assumes significance as on its basis he wants to step in to the shoes of plaintiff and solely put the claim of title through Dwarka Prasad Pandey.

8. Order 22 Rule 5 CPC was the relevant provision here which should have been invoked into operation to decide the dispute, as it says that where the question arises whether any person is or is not a legal representative of the deceased plaintiff/defendant, such question shall be determined by the Court. Since the execution of will in favour of respondent was the fact in issue for deciding this dispute, therefore the learned trial Court was supposed to hold a summary inquiry into the matter and then decide the issue. The impugned order suggests that no such inquiry was held and the application for substitution of LR's was decided merely on the basis of arguments.

9. Finding that the impugned order passed by the learned trial Court is not in confirmi