# Ram Kripal & Ors v. Jagjeevan & Anr

- **Citation:** (2024) 12 ILRA 64
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-12-20
- **Case number:** Second Appeal No. 240 of 2002
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-kripal-ors-v-jagjeevan-anr-51306
- **Pages:** 11

## Headnote

Civil Law - Civil Procedure Code, 1908 -
Section 100 - Rule 4A - Order 22- Rule 4,
5, 6, 11 - Order-41 - Rule-31 - UP
Zamindari Abolition & Land Reforms Act,
1950 - Section 210 - Indian Succession
Act, 1925 - Section 63 - Indian Evidence
Act,1872 - Section 68 - Second appeal -
seeks to set aside the judgment and decree,
passed in Civil Appeal - the lower appellate
court allowed the appeal, overturning the trial
court's decision and cancelling the sale deed in
question, directing the trial court to inform the
concerned Sub Registrar - The defendantappellants argued that the suit for cancellation
of the sale deed was based on general
allegations, which were denied in the written
St.ment, and the trial court rightly dismissed the
suit - However, the lower appellate court
accepted the appeal, claiming that plaintiff an
illiterate Pardanashin village lady, had her
thumb impression obtained on the sale deed
through fraud and misrepresentation - court
finds that, since the plaintiff, who had filed the
appeal, died after the hearing was concluded,
therefore, the proceedings did not abate and on
the other hand, considered the application of
respondent no. 1 and allowed without, following
the prescribed procedure - held, the lower
appellate court directed to addressed the issue
of legal representation of the deceased plaintiffappellant - hence, the matter is remitted to the
lower appellate court to decide the issue as to
whether
the
respondent
no.
1
is
legal
representative of the plaintiff or not afresh in
accordance with law within a period of three
months
without
granting
unnecessary
adjournment to either parties - direction issued
to list the second appeal after receipt of the
order passed by the lower court - appeal is
pending. (Para - 13, 14, 18, 19, 24, 25)

Second Appeal Pending. (E-11)

List of Cases cited:

## Text

64 INDIAN LAW REPORTS ALLAHABAD SERIES
11 CPC and the trial court shall be at all its
competence to decide all questions of fact
and law involved in the matter after holding
full-fledged trial.
----------
(2024) 12 ILRA 64
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.12.2024

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Second Appeal No. 240 of 2002

Ram Kripal & Ors. ...Appellant
Versus
Jagjeevan & Anr. ...Respondents

Counsel for the Appellant:
U.S. Sahai

Counsel for the Respondents:
D.C. Mukharji, Dr. Ramsurat Pande, Surya
Bhan Singh, Vinod Mishra

Civil Law - Civil Procedure Code, 1908 -
Section 100 - Rule 4A - Order 22- Rule 4,
5, 6, 11 - Order-41 - Rule-31 - UP
Zamindari Abolition & Land Reforms Act,
1950 - Section 210 - Indian Succession
Act, 1925 - Section 63 - Indian Evidence
Act,1872 - Section 68 - Second appeal -
seeks to set aside the judgment and decree,
passed in Civil Appeal - the lower appellate
court allowed the appeal, overturning the trial
court's decision and cancelling the sale deed in
question, directing the trial court to inform the
concerned Sub Registrar - The defendantappellants argued that the suit for cancellation
of the sale deed was based on general
allegations, which were denied in the written
St.ment, and the trial court rightly dismissed the
suit - However, the lower appellate court
accepted the appeal, claiming that plaintiff an
illiterate Pardanashin village lady, had her
thumb impression obtained on the sale deed
through fraud and misrepresentation - court
finds that, since the plaintiff, who had filed the
appeal, died after the hearing was concluded,
therefore, the proceedings did not abate and on
the other hand, considered the application of
respondent no. 1 and allowed without, following
the prescribed procedure - held, the lower
appellate court directed to addressed the issue
of legal representation of the deceased plaintiffappellant - hence, the matter is remitted to the
lower appellate court to decide the issue as to
whether
the
respondent
no.
1
is
legal
representative of the plaintiff or not afresh in
accordance with law within a period of three
months
without
granting
unnecessary
adjournment to either parties - direction issued
to list the second appeal after receipt of the
order passed by the lower court - appeal is
pending. (Para - 13, 14, 18, 19, 24, 25)

Second Appeal Pending. (E-11)

List of Cases cited:

1. Krishna Devi Vs Siksha Devi; MANU/
UP/2018/2020, [(2020) 3 AWC 2230 All],

2.
Ali
Husain
(Dead)
Through
Legal
Representatives Vs Rabiya & ors.; (2019) 9 SCC
353,

3. Kewal Krishan Vs Rajesh Kumar & ors.; 2022
(156) RD 171,

4. Smt. Dularia Devi Vs Janardan Singh & ors.;
1990 RD (SC) 193,

5. Jokhu Vs Deputy Director Consolidation,
Pratapgarh & ors.; 2018 (36) LCD 453,

6. Laxmi Narain & anr. Vs Smt. Hubraja @
Barki; 1989 (7) LCD 284.

7. Jaladi Suguna (deceased) through LRs Vs
Satya Sai Central Trust & ors.; (2008) 8 SCC
521,

8. Mahanth Satyanand @ Ramjee Singh Vs
Shyam Lal Chauhan & ors.; (2018) 18 SCC 485.

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard, Shri U.S. Sahai, learned
counsel for the appellants and Dr. R.S.
Pande, learned Senior Advocate assisted by
12 All. Ram Kripal & Ors. Vs. Jagjeevan & Anr.
65
Shri Vinod Mishra, learned counsel for the
respondents.

2. This second appeal under Section
100 of Civil Procedure Code (here-in-after
referred as CPC) has been filed for setting
aside the judgment and decree dated
30.05.2002
passed
in
Civil
Appeal
No.4/2001; Smt. Gaya Dei Vs. Ram Kripal
and Others by 6th Additional District and
Sessions Judge, Sultanpur, by means of
which the appeal has been allowed and the
judgment and decree passed by the court
below i.e. the trial court has been set aside
and the sale deed in question has been
cancelled with a direction to the trial court
to communicate the cancellation of sale
deed to the concerned Sub-Registrar.

3. The appeal has been admitted on the
following substantial questions of law:-

"1.Whether the judgement and
decree rendered by the lower Appellate
Court stands vitiated for non compliance of
the mandatory provisions contained under
Order XXXXI, Rule 31 C.P.C.

2. Whether even after the clear
admissions made by Smt. Gaya Dei that she
has not filed any suit for cancellation and
she being totally ignorant about the case,
the lower Appellate Court could allow the
appeal and decree the plaintiffs' suit.

3. Whether the Lower Appellate
Court could reverse the findings recorded
by the trial court without considering the
reasons adopted by the trial court and the
evidence relied upon by the trial court.

4. Whether during pendency of
the appeal before the Lower Appellate
Court, in the matter of substitution
consequent on the death of Smt. Gaya Dei,
alleged Will set up by the respondents
Jagjeevan, being disputed, the Lower
Appellate Court could substitute the
Jagjeevan without entering into evidence
and without the Will having been proved."

4. Learned counsel for the defendantappellants submitted that the suit for
cancellation of sale deed by Gaya Dei in
favour of Pudda was filed with general
allegations in the plaint, which were denied
in the written statement filed by the
defendant-appellant nos.1 to 3. The trial
court, after considering the pleadings,
evidence and material on record and
recording the finding that the execution and
thumb impression on the sale deed has been
admitted by the Gaya Dei and no allegation
has been levelled against the transferee and
no evidence of any benefit to her confident
Ram Lakhan Singh has been adduced,
rightly dismissed the suit. He further
submitted that the lower appellate court has
allowed the civil appeal filed by the
plaintiff-respondent without following the
provisions of Order-41, Rule-31 CPC. He
further submitted that the lower appellate
court,
without
considering
that
the
predecessor-in-interest of the plaintiffrespondent Gaya Dei had executed two sale
deeds including the sale deed in question
and contested a case of mutation with Smt.
Maha Dei and the murder case, therefore, it
can not be said that she was not aware with
the worldly affairs and entitled for any
benefit of Pardanashin lady, held that the
thumb impression had been obtained on
sale deed in her ignorance and misleading
her. The lower appellate court also failed to
consider that the plaintiff Gaya Dei
admitted in her evidence that she has not
filed any suit for cancellation of sale deed
and she does not know about the suit and
she has come to court twice only. Thus,
admittedly, the suit was not filed by her but
was got filed by some other person. He
further
submitted
that
the
financial
condition and capability to purchase the
66 INDIAN LAW REPORTS ALLAHABAD SERIES
land in dispute by Pudda has not been
questioned but the lower appellate court
considered the same and also considering
the evidence of other witnesses recorded
findings on the basis of presumption
without any basis and failed to consider the
cross-examination of PW-1 Gaya Dei, in
which she admitted two sale deeds and sale
deed about eleven years back, thus, the sale
deed of appellant has been admittedly
executed by her.

5. On the basis of above, learned
counsel
for
the
defendant-appellants
submitted that the impugned judgment and
decree passed by the lower appellate court
is not sustainable in the eyes of law and it
is liable to be set-aside restoring the
judgment and decree passed by the trial
court. He relied on Krishna Devi Vs.
Siksha
Devi;
MANU/UP/2018/2020,
[(2020) 3 AWC 2230 All] and Ali Husain
(Dead) Through Legal Representatives
Vs. Rabiya and Others; (2019) 9 SCC
353.

6. Per contra, learned counsel for the
plaintiff-respondent vehementally opposed
the submissions of learned counsel for the
defendant-appellants. He submitted that the
lower appellate court had failed to consider
the evidence adduced by the defendantappellants rightly and in accordance with
law, therefore, the same has rightly been
considered by the lower appellate court in
accordance with law and after considering
the same in detail and recording the
findings thereon allowed the appeal. Thus,
the provisions of Order-41, Rule-31 CPC
have been followed and since all the issues
have been considered by the lower
appellate court, therefore, it can not be said
to have been vitiated merely because the
points for determination have not been
formulated. The appeal has been filed on
misconceived and baseless grounds. The
substantial questions of law formulated in
this appeal does not arise in this appeal,
therefore, the appeal is liable to be
dismissed with cost. He relied on Kewal
Krishan Vs. Rajesh Kumar and Others;
2022 (156) RD 171, Smt. Dularia Devi
Vs. Janardan Singh and Others; 1990
RD (SC) 193, Jokhu Vs. Deputy Director
Consolidation, Pratapgarh and Others;
2018 (36) LCD 453 and Laxmi Narain
and Another Vs. Smt. Hubraja @ Barki;
1989 (7) LCD 284.

7. I have considered the submissions
of learned counsel for the parties, and
perused the records.

8. The suit for cancellation for sale
deed was filed by the Gaya Dei alleging
therein that she is illiterate Pardanashin
village lady, who became widow after few
days of her marriage and her whole life
passed with the help of neighbours and on
her confidants. She was owner and in
possession of Gata No.811 as Bhumidhar in
continuation of her mother-in-law. Ram
Lakhan Singh is residing near her old house
and their family used to go each others. He
also used to help her in agriculture as per
need. She had to contest a case with Ram
Dei after death of her mother-in-law, in
which also he had helped and got the
evidence of his close man Pudda son of
Manbhod adduced. The old house of the
plaintiff was at an aloof place, therefore,
the said Ram Lakhan had helped her in
getting a land in his neighbourhood and
constructing a new house on the same, on
account of which she had more confidence
on him. Ram Lakhan Singh asked to the
plaintiff that her new house is required to
be recorded in the records and for the said
purpose he took her to Musafirkhana and
got her thumb impression on many papers
12 All. Ram Kripal & Ors. Vs. Jagjeevan & Anr.
67
and she put the thumb impression with a
view that it was required. The said Ram
Lakhan had not informed for any execution
of sale deed. When the plaintiff demanded
a copy of the documents of her agricultural
fields on 16.07.1989 from the Lekhpal then
she came to know that the name of
predecessor-in-interest of the defendantappellants Pudda has been recorded on the
land in question bearing Gata No.811.
Then, after inspection from the Tehsil
Musafirkhana, she got the copies and came
to know that Pudda has got a registered sale
deed executed from her, whereas she has
not executed the sale deed. Thereafter, after
coming to know about the ex-party
mutation in favour of the Pudda, she filed
an appeal under Section 210 of U.P.
Zamindari Abolition and Land Reforms
Act, which is pending. The suit for
cancellation of sale deed was filed on the
grounds that she has not got any money in
consideration of sale. She was also not in
need of any money on account of which
she would had to sell her land. She has not
given any party (bhog) and went on
pilgrimage, for which she would have to
borrow. The sale deed in question is an out
come of fraud. Pudda was doing her
agriculture and she had full confidence on
him. The said Ram Lakhan Singh had put
Pudda with her to look after the agriculture
of the plaintiff. The plaintiff has no legal
heir. The witnesses of the sale deed and
Pudda are the confidants to each other.

9. The suit was contested by the
defendant-appellants denying most of the
averments made in the plaint. It has further
been alleged that the plaintiff is a clever
lady and knows worldly affairs. However,
it was not disputed that the house of the
plaintiff was at an aloof place and after
murder of Ram Deen, she had lived with
Ram Lakhan Singh for same time, from
where Tribhuvan had forcibly taken her
away. It was further alleged that the
plaintiff has made a concocted story of
going to Musafirkhana for recording the
name for the new house. Pudda used to live
at the house of the plaintiff, for which he
was being paid wages. The pattidar of the
plaintiff Tribhuvan and others were angry
with the sale deed executed by her,
therefore after death of Pudda they had also
murdered the father of the respondent no.4
Ram Dev, on account of which in the
criminal prosecution against them, they
have
been
convicted
with
life
imprisonment.
The
mother
of
the
defendant-appellant no.4 had moved an
application
and
adopted
the
written
statement filed by the defendant-appellants
no.1 to 3.

10. After exchange of pleadings,
following six issues were framed by the
trial court.

"।. क्या वादिनी का िावा कथनानुसार प्रश्नगत बैनामा
मंसूख होने योग्य है?

2. (क) क्या वाि मूलयांकन कम है ?

(ख)क्या अिा दकया गया न्याय शुलक अपयााप्त है ?

3. क्या िावा काल बादित है ?

4. क्या वाि 34/41 दवदनदिाष्ट अनुतोष अदिदनयम
से बादित है ?

5. क्या िावा 33। जमींिारी दवनाश अदिदनयम से
बादित है?

6. क्या वादिनी दकसी अनुतोष को पाने की
अदिकाररणी है ?"

11. After framing of issues, the
documentary as well as oral evidence was
adduced by the parties. Gaya Dei; the
plaintiff appeared as PW-1, Brij Lal as PW2 on behalf of the plaintiff. Devta Deen the
defendant-appellant no.2 appeared as DW1, Ram Das as DW-2, Shanker Bux Singh
68 INDIAN LAW REPORTS ALLAHABAD SERIES
as DW-3, Mohd. Zaki son of Mohd. Shafi
as DW-4, Ram Lakhan Singh as DW-5 and
Shiv Prasad Yadav as DW-6 on behalf of
the defendant-appellants. Thereafter, after
hearing learned counsel for the parties and
considering the pleadings, evidence and
material on record, the trial court dismissed
the suit. Being aggrieved, the civil appeal
was filed by the plaintiff. Before the lower
appellate court, the respondent no.2 Hub
Lal claiming himself to be the maternal
grand father of the defendant-appellant
no.4 moved an application for appointment
of his guardian on the ground that his
mother Janki is mad, therefore, she is not in
a position to protect the interest of the
minor. However, the lower appellate court
held that the mother of the defendantappellant no.4 Smt. Janki is prudently
protecting the interest of the minor and she
has rightly adopted the written-statement of
the other defendant-appellants no 1 to 3.
During pendency of appeal the plaintiff
Gaya Dei died, therefore the respondent
no.1
was
authorise
to
pursue
the
proceedings of appeal on the basis of a will
of Gaya Dei produced by him. Thereafter
the lower appellate court proceeded to
consider and decide the appeal considering
each and every issue framed by the trial
court and allowed the appeal with cost
setting aside the judgment and decree
passed by the trial court and cancelled the
sale deed in question with a direction to the
trial court to inform to the concerned SubRegistrar about it. Hence this second appeal
has been filed by the defendant-appellants,
which has been admitted on the aforesaid
substantial questions of law.

12. The fourth substantial question of
law is in regard to procedural lapse on the
part of the lower appellate court in deciding
the question of legal representative of the
plaintiff-appellant before it. The disposal of
the said issue makes respondent no.1 legal
representative of Gaya Dei because there is
no other successor of the deceased
plaintiff-appellant
before
the
lower
appellate court, therefore, this court deems
it appropriate to consider it first because the
proceedings can be continued only after
determination
of
the
issue of
legal
representative as in absence of legal
representative the proceedings can be
continued
after
following
procedure
prescribed in Rule 4A of CPC.

13. The judgment was reserved on
13.09.2001 by the lower appellate court,
which was to be delivered on 19.09.2001.
Gaya Dei the plaintiff-appellant before
lower appellate court, who had filed the
suit for cancellation of sale deed died on
16.09.2001, therefore, the application was
filed on 17.09.2001 informing the same
with a request for abatement. An objection
to the same was filed that since the case is
fixed for judgment, therefore, there is no
question of abatement of appeal under
Order-22, Rule-6. The application was filed
by
respondent
no.1
Jagjivan
Mishra
claiming
himself
to
be
the
legal
representative of the Gaya Dei on the basis
of a registered will executed by her on
20.08.1998 in his favour. An application
was also filed by one Shesh Narain
Dwivedi for his substitution. However, the
same was not pressed, therefore, it was
dismissed. An objection, to the application
filed by the respondent no.1, was filed on
the ground that Gaya Dei had not executed
any will and the will presented by
respondent no1 is forged and fabricated. An
application was filed by the defendantappellant Ram Kripal etc. for their
substitution on the basis of sale deed,
claiming
that
they
are
the
legal
representatives of the deceased Gaya Dei
and since the will deed has been executed
12 All. Ram Kripal & Ors. Vs. Jagjeevan & Anr.
69
after execution of sale deed, therefore, it
has no effect and the judgment could not be
pronounced within 14 days, therefore, they
should be substituted. An objection was
filed by the respondent no.1 stating therein
that the will deed was correct and
registered and he has right to prosecute the
further proceedings.

14. The learned lower appellate court,
after considering the applications and the
objections, found that since the hearing was
concluded on 13.09.2000 and the judgment
was to be delivered on 19.09.2001,
therefore, the question of abatement of
appeal under Order-22, Rule-6 does not
arise. The lower appellate court held that
the pronouncement of judgment is not part
of hearing. Thereafter, the lower appellate
court proceeded to consider the application
filed by the respondent no.1 for substitution
on the basis of will executed by deceased
plaintiff Gaya Dei on 20.08.1998 of her
movable and immovable property and
considering the evidence on record, the
learned lower appellate court recorded a
finding that there is evidence on record that
Gaya Dei was living with Tribhuvan prior
to her death and the defendant-appellants
have admitted in their objection that the
respondent no.1 Jagjivan is brother-in-law
of Tribhuvan and after considering certain
case laws held that since the defendantappellants are already on record, therefore,
it would be justified to declare the
respondent no.1 authorised for pursuing the
appeal further and accordingly authorised
him by means of the order dated
24.10.2001 and fixed the case for hearing
as more than 14 days had passed after
hearing of the case. Thus, the lower
appellate court appears to was of the view
that both are legal representative of the
deceased Gaya Dei, whereas the court
should have decided as to whether the
respondent
no.1
would
be
legal
representative of the deceased Gaya Dei or
not to pursue the proceedings. The lower
appellate
court
without
deciding
it
conclusively after hearing allowed the
appeal and set aside the judgement and
decree passed by the trial court and allowed
the suit and cancelled the sale deed.

15. Order-22, Rule-5 of CPC provides
the determination of question as to legal
representative, which is extracted here-inbelow:-

"5. Determination of question as
to legal representative.-Where a question
arises as to whether any person is or is not
the legal representative of a deceased
plaintiff or a deceased defendant, such
question shall be determined by the Court:

[Provided
that
where
such
question arises before an Appellate Court,
that Court may, before determining the
question, direct any subordinate Court to
try the question and to return the records
together with evidence, if any, recorded at
such trial, its findings and reasons therefor,
and the Appellate Court may take the same
into consideration in determining the
question.]"

16. Proviso to the aforesaid rule
provides that where such question arises
before an Appellate Court, that Court may,
before determining the question, direct any
subordinate Court to try the question and to
return the records together with evidence, if
any, recorded at such trial, its findings and
reasons therefor, and the Appellate Court
may take the same into consideration in
determining the question, therefore if a
question arises before the court as to who is
legal
representative
of
plaintiff
or
defendant, it is to be decided by the court.
If this question arises before an appellate
70 INDIAN LAW REPORTS ALLAHABAD SERIES
court, it may direct the subordinate court to
try the question and return with evidence
recorded, if any, therefore, if for trying the
question
of
legal
representative
any
evidence is required to be recorded, if can
be recorded and thereafter considering the
same, the question of legal representative
can be determined.

17. In the present case, the question as
to whether the respondent no.1 is the legal
representative of the deceased Gaya Dei or
not was before the lower appellate court
because he was claiming on the basis of a
registered will executed in his favour by
Gaya Dei and an objection was filed to the
same by the defendant-appellants disputing
the will deed and alleging that the will deed
is forged and fabricated and it could not
have been executed by Gaya Dei after
execution of sale deed, therefore, the
respondent can not be a legal representative
of Gaya Dei. Therefore, it was incumbent
upon the lower appellate court to consider
the said issue of legal representative of
Gaya Dei as per the procedure prescribed
under Order-22, Rule-5 of CPC. But the
learned lower appellate court without
following the procedure as prescribed
under law authorised the respondent no.1 to
pursue the proceedings of appeal, that too
without his substitution, whereas in case
the question of legal representative was
determined, he should have been made a
party in appeal in view of Rule-3 of Order22.

18. The learned lower appellate court
on the one hand held that since the plaintiff,
who had filed the appeal, died after the
hearing was concluded, therefore, the
proceedings did not abate and on the other
hand,
considered
the
application
of
respondent no.1 and allowed without,
following the prescribed procedure and
authorized him to pursue the proceedings
without his substitution/ impleadment,
whereas if there was no abatement under
Order-22, Rule-6 CPC, there was no
question of authorizing the respondent no.1
to pursue the appeal. Rule-6 of Order-22
CPC is extracted here-in-below:-

"6. No abatement by reason of
death
after
hearing.-Notwithstanding
anything contained in the foregoing rules,
whether the cause of action survives or not,
there shall be no abatement by reason of
the death of either party between the
conclusion
of
the
hearing
and
the
pronouncing of the judgment, but judgment
may
in
such
case
be
pronounced
notwithstanding the death and shall have
the same force and effect as if it had been
pronounced before the death took place."

19. In view of above, this Court is of
the view that the lower appellate court has
not only not followed the procedure
prescribed under law but also allowed the
application
of
the
respondent
no.1
recording contradictory findings, which
could not have been done because a dispute
was raised in regard to the validity of the
will deed on the basis of which, the
respondent no.1 had set up his claim for
being legal representative of the deceased
plaintiff-appellant Gaya Dei before the
lower court, which could not have been
decided
without
following
the
due
procedure of law and provisions of section
63 of the Indian Succession Act, 1925 read
with Section 68 of the Indian Evidence Act.

20. The Hon'ble Supreme Court, in the
case of Jaladi Suguna (deceased) through
LRs Vs. Satya Sai Central Trust and
Others; (2008) 8 SCC 521, has held that
provisions of Rules 4 and 5 of Order 22 are
mandatory and where a question arises as
12 All. Ram Kripal & Ors. Vs. Jagjeevan & Anr.
71
to whether who should be the legal
representative and if there is a dispute as to
who is the legal representative, a decision
should be rendered on such dispute and
only
when
the
question
of
legal
representative is determined by the court
and such legal representative is brought on
record, it can be said that the estate of the
deceased is represented. However, it will
be for the limited purpose of representation
of the estate of the deceased, for
adjudication of that case. It has further been
held that though Rule 5 does not
specifically provide that determination of
legal representative should precede the
hearing of the appeal on merits, Rule 4 read
with Rule 11 make it clear that the appeal
can
be
heard only
after
the
legal
representatives are brought on record. The
deceased in the said case was defendantrespondent and in the present case the
plaintiff-appellant
before
the
lower
appellate court had died, therefore, the
provisions of Rule-3 read with Rule-11 of
Order-22 CPC would be attracted. The
relevant paragraphs 14, 15 and 16 are
extracted here-in-below:-

"14. When a respondent in an
appeal dies, and the right to sue survives,
the legal representatives of the deceased
respondent have to be brought on record
before the court can proceed further in the
appeal. Where the respondent-plaintiff who
has succeeded in a suit, dies during the
pendency of the appeal, any judgment
rendered on hearing the appeal filed by the
defendant, without bringing the legal
representatives of the deceased respondentplaintiff on record, will be a nullity. In the
appeal before the High Court, the first
respondent therein (Suguna) was the
contesting respondent and the second
respondent (the tenant) was only a pro
forma
respondent.
When
the
first
respondent in the appeal died, the right to
prosecute the appeal survived against her
estate. Therefore, it was necessary to bring
the legal representative(s) of the deceased
Suguna on record to proceed with the
appeal.

15. Filing an application to bring
the legal representatives on record, does
not
amount
to
bringing
the
legal
representatives on record. When an LR
application is filed, the court should
consider it and decide whether the persons
named therein as the legal representatives,
should be brought on record to represent
the estate of the deceased. Until such
decision by the court, the persons claiming
to be the legal representatives have no
right to represent the estate of the
deceased, nor prosecute or defend the case.
If there is a dispute as to who is the legal
representative,
a decision
should
be
rendered on such dispute. Only when the
question
of
legal
representative
is
determined by the court and such legal
representative is brought on record, can it
be said that the estate of the deceased is
represented. The determination as to who is
the legal representative under Order 22
Rule 5 will of course be for the limited
purpose of representation of the estate of
the deceased, for adjudication of that case.
Such
determination
for
such
limited
purpose will not confer on the person held
to be the legal representative, any right to
the property which is the subject-matter of
the suit, vis-à-vis other rival claimants to
the estate of the deceased.

16. The provisions of Rules 4 and
5 of Order 22 are mandatory. When a
respondent in an appeal dies, the court
cannot simply say that it will hear all rival
claimants to the estate of the deceased
respondent and proceed to dispose of the
appeal. Nor can it implead all persons
claiming to be legal representatives, as
72 INDIAN LAW REPORTS ALLAHABAD SERIES
parties to the appeal without deciding who
will represent the estate of the deceased,
and proceed to hear the appeal on merits.
The court cannot also postpone the
decision
as
to
who
is
the
legal
representative of the deceased respondent,
for being decided along with the appeal on
merits. The Code clearly provides that
where a question arises as to whether any
person is or is not the legal representative
of a deceased respondent, such question
shall be determined by the court. The Code
also provides that where one of the
respondents dies and the right to sue does
not
survive
against
the
surviving
respondents, the court shall, on an
application made in that behalf, cause the
legal representatives of the deceased
respondent to be made parties, and then
proceed with the case. Though Rule 5 does
not specifically provide that determination
of legal representative should precede the
hearing of the appeal on merits, Rule 4
read with Rule 11 makes it clear that the
appeal can be heard only after the legal
representatives are brought on record."

21. The Hon'ble Supreme Court, in the
case of Mahanth Satyanand @ Ramjee
Singh Vs. Shyam Lal Chauhan And
Others; (2018) 18 SCC 485, has held that
the issue of bringing on record the legal
representative in a pending appeal has to be
dealt with in a manner prescribed under the
provisions of Order 22 Rule 5. The Court,
before proceeding to decide with the
substantive issues involved in the case, first
and foremost, shall decide who is the legal
representative of the deceased. It has
further been held that the statute has clearly
mandated that if the question of deciding
the legal representative of a legatee arises
before an appellate Court, it may direct the
subordinate Court to make enquiries by
leading evidence, if any, through the
process of trial and record its finding as to
who is the legal representative and after
considering the finding recorded by the
trial Court, the appellate Court can decide
and bring on record the legal representative
of the deceased. It has also been held that
procedural laws are meant to advance
justice and a procedure contemplated under
the code which is mandatory in nature shall
not be skipped or ignored by the Courts.
The relevant paragraphs 10 and 11 are
extracted here-in-below:-

"10. Apparently, the issue of
bringing on record the legal representative
in a pending appeal has to be dealt with in
a manner prescribed under the provisions
of Order 22 Rule 5. From the context of the
settled legal position, it is clear that when a
question arises before the court in a
pending matter as to who will come on
record as the legal heir of the deceased, the
court shall, before proceeding to decide
with the substantive issues involved in the
case, first and foremost, shall decide who is
the legal representative of the deceased. It
is also well settled that when a party dies at
the stage of second appeal and there are
rival contenders claiming to be the legal
representatives of the deceased, as in the
present case, there is a burden cast upon
the court to first decide as to who is the
legal representative of the deceased.
Without doing so, the court cannot proceed
with the disposal of the case on hand. At
the same time, the court cannot make all
the contenders as parties. The aspect of
deciding legal representative cannot also
be postponed with a view to decide the
same at the time of final disposal of the
appeal on merits. It is significant that the
statute has clearly mandated that if the
question
of
deciding
the
legal
representative of a legatee arises before an
appellate
court,
it
may
direct
the
12 All. Ram Kripal & Ors. Vs. Jagjeevan & Anr.
73
subordinate court to make enquiries by
leading evidence, if any, through the
process of trial and record its finding as to
who is the legal representative. After
considering the finding recorded by the
trial court, the appellate court can decide
and
bring
on
record
the
legal
representative of the deceased.

11. It is indisputable that the
procedural laws are meant to advance
justice. A procedure contemplated under
the code which is mandatory in nature shall
not be skipped or ignored by the courts.
Whereas, in the instant case, the High
Court's approach has diluted the purport of
Order 22 Rule 5 CPC and is contrary to the
law laid down by this Court in Jaladi
Suguna [Jaladi Suguna v. Satya Sai
Central Trust, (2008) 8 SCC 521] . Such an
approach of the High Court cannot be
sustained."

22. In view of above, since the
question as to whether the respondent no.1
is legal representative of the plaintiffappellant Gaya Dei before the lower
appellate court or not, in regard to which
the dispute was raised by the defendantappellants, was not decided determining the
question in accordance with law, therefore,
it requires to be decided in accordance with
law.

23. It is also noticed by this Court that
though an objection has been raised by the
defendant-appellants that the respondent
no.1 is the brother-in-law of Tribhuvan and
the
lower
appellate
court
has
also
considered the same but in the will deed
placed on record as Paper No.15-Ga/1, it
has been stated that after death of the
husband of Gaya Dei, she was being looked
after by the son of the daughter of her
maternal uncle, who is like her son and
even at this stage of old age also Jagjivan
Mishra is serving her in each possible
manner, therefore, the relationship of
respondent no.1 with the deceased Gaya
Dei does not seem to be clear. An
application was also moved by Jagjivan
Mishra but in the present case he has been
impleaded as Jagjivan. Though parentage is
same but it has not been objected, although
Vakalatnama has been signed by Jagjivan
Mishra.

24. In view of above, this Court is of
the view that the lower appellate court has
decided the issue as to whether the
respondent no.1 is legal representative of
the plaintiff-appellant Smt. Gaya Dei
before the lower appellate court or not
without following the due procedure of law
and recording contradictory and perverse
findings, therefore, this Court is of the view
that the same should be decided first by the
lower appellate court before considering
the other substantial questions of law and
decide this appeal finally because it may
have impact on the entitlement of the
respondent no.1 not only after disposal of
this appeal but in the further proceedings
also as the matter is old and appeal is
pending since a long time. This court
deems it appropriate to direct to the lower
appellate court to determine the question as
to whether the respondent no.1 is the legal
representative of the deceased Gaya Dei or
not in accordance with law and the
observations made here-in-above in this
order after considering the respective
pleadings and affording opportunity to the
parties to lead evidence on the same. The
fourth substantial question of law stands
decided accordingly.

25. The matter is remitted to the lower
appellate court to decide the aforesaid issue
as to whether the respondent no.1 is legal
representative of the plaintiff Gaya Dei or
74 INDIAN LAW REPORTS ALLAHABAD SERIES
not afresh in accordance with law and
observations made here-in-above in this order
expeditiously and within a period of three
months
without
granting
unnecessary
adjournment to either of the parties and fixing
at least one date in a week and, if possible, on
day to day basis and send the order so passed
alongwith the evidence adduced by the
parties, if any. The determination of the issue
earlier made by the lower appellate court
shall be subject to fresh determination made
by the lower appellate court under this order
and abide by the same.

26. The case shall be listed immediately
after receipt of the order passed by the lower
appellate court with the record or in the week
commencing 21.04.2025, whichever is earlier
for further hearing.

27. The lower court record shall be
remitted forthwith to the concerned appellate
court so that it may reach before the date
fixed before the lower appellate court for
appearance in this order. The parties shall
appear before the lower appellate court on
15.01.2025.
----------
(2024) 12 ILRA 74
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.12.2024

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

First Appeal No. 388 of 2015
With
First Appeal No. 357 of 2016
With
First Appeal No. 1104 of 2003
With
First Appeal No. 1138 of 2003

Natthan Singh ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Madan Mohan, Rakesh Pande, Shailesh K.
Upadhyay, Shailesh Upadhyay

Counsel for the Respondents:
Ashok
Mehta,
Prabhat
Tripathi,
S.C.,
Subodh Kumar

A. Acquisition Law - Land Acquisition Act,
1894 - Section 6 - Award - Determination
of compensation - Doctrine of merger -
Applicability - High Court passed an
order dated 10.01.2002 in Ran Singh's
case
enhancing
the
compensation,
against which S.L.P. of acquiring body
(CPWD and UOI) was dismissed in
limine
with
certain
observation
regarding
impleadment
-
C.P.W.D./U.O.I. were not parties to
the lis culminating into the order
dated 10.01.2002 - Effect - Held, the
adjudication made by this Court in
Ran Singh's case would not amount
to merger or confirmation of this
Court's judgment dated 10.01.2002
in the Supreme Court's orders, at
least affecting or prejudicing any
right of acquiring body. (Para 9, 23
and 24)

B. Acquisition Law - Land Acquisition Act,
1894 - Sections 9 & 25 - Award - No
claim was raised in pursuance to the
notice issued u/s 9 - No dispute regarding
service of notice has been raised - Effect -
Entitlement of over amount to the award -
Bar of Section 25 - Applicability - Held, S.
25, as existed on the date of issuance of
notifications, would operate as a statutory
obstruction standing against the claimants
to claim any higher compensation over
and above Rs. 1.90/- per Sq. Yd. as
determined by the S.L.A.O. under the
initial award. (Para 26 and 32)

First Appeal of tenure holders dismissed
and of St. allowed. (E-1)

List of Cases cited: