BISHAMBHAR NATH Vs. RAGHUNATH PRASAD SHARMA

JUDGEMENT

(1.) THIS is an application for substitution under O. 22, R. 4, Civil P. C. Bishambhar Nath and Mool Chand have filed a first appeal against Raghu nath Prasad and others. The first appeal arises out of a suit under Sec. 92 of the Code of Civil Procedure. The suit had been decreed by the trial court. Bisham-bar Nath and Mool Chand defendants have therefore filed the first appeal.

(2.) RAGHUNATH Prasad. respondent No. 1, died during the pendency of the appeal. The appellants have therefore filed the present application for bring ing' on record sons and other heirs of Raghunath Prasad respondent as his legal representatives. The application is op posed on behalf of the respondents. Ac cording to the respondents, there is no need to bring on the record the heirs of Raghunath Prasad deceased, because the matter has arisen out of a suit under Section 92, Civil P. C.

(3.) IN Tula Ram v. Tikam Singh, AIR 1934 All 315 it was held that where in a suit under Section 92 the question is whether the property is private or public and the defendant contends it to be a private one, the cause of action survives on his death against his sons and the suit does not abate. It will be noticed that in that case the defendant took up the stand that the property in dispute was defendant's private property. That -was why it was held that the defendants sons were the legal repre sentatives of the deceased. It five pre sent case Raghunath Prasad deceased is a plaintiff respondent. The plaintiffs did not claim any personal interest in the property. They appeared before the court on the footing that there was a public trust.