RAGHO RAM Vs. DISTRICT JUDGE BASTI

JUDGEMENT

(1.) HEARD learned counsel for the petitioner. Late Shri Kashi Prasad filed a suit (O. S. No. 515 of 1981) against respondent Nos. 6 to 10-Santosh Kumar and others for cancellation of sale deed dated 5.10.1981. During pendency of suit Shri Kashi Prasad died on 28.7.1982. Two substitution / impleadment applications were filed one by respondent Nos. 4 and 5, Thakur Prasad and Smt. Ram Sanwari and the other by the petitioner. Both the parties claimed that late Shri Kashi Prasad had executed Wills in their favour. Petitioner claimed that Kashi Prasad had executed Will in his favour on 18.7.1982. Respondent Nos. 4 and 5 claimed that the deceased had executed a registered Will deed dated 25.11.1981 in their favour. Trial court/Munsif, Basti through order dated 8.2.1984, decided the matter in favour of respondent Nos. 4 and 5. Kashi Prasad in the plaint had also stated that he had executed Will deed in favour of respondent Nos. 4 and 5. The Will deed produced by the petitioner was unregistered.

(2.) AGAINST order of the trial court petitioner filed Civil Revision No. 50 of 1984, which was dismissed on 3.8.1984 by IIIrd Additional District Judge, Basti. Thereafter petitioner filed application for his impleadment as defendant. Trial court by its order dated 18.10.1985, rejected the said application. AGAINST the said order Civil Revision No. 205 of 1985, was filed which was dismissed on 8.9.1986 by District Judge, Basti. Through this writ petition all these orders have been challenged.

(3.) THE purpose of substitution is continuance of the suit and order of substitution does not finally determine the rights. In Smt. Sarmishtha Devi Surve v. Lal Saheb Surve, AIR 1996 MP 13, it has been held that substitution of a person on the basis of a Will cannot be said to be finally determining the genuineness of the Will. In Dukh Haran v. Dulhin Bihasa, AIR 1963 Pat 390, it has been held that order appointing a person as a legal representative in the suit will not have the effect of deciding that he is the heir of the deceased party. In the following authorities it has been held that the decision as to who is the legal representative should be limited for the purposes of carrying on the suit and cannot have an effect of conferring any right to heirship or to property and such a decision does not operate as res judicata in a subsequent suit : - Satish Kumar v. Addl. District Judge (HC), 2004 (57) ALR 100 : 2005 (1) AWC 666. - S. A. Hussain v. D. D. of Consolidation, 1970 ALJ 1167. - Mohinder Kaur v. Piara Singh, AIR 1981 Punj 130 (FB). - Jagdish v. District Judge, 2000 (1) ACJ 721 : 1999 (4) AWC 766. - Ram Kalap v. Banshi Dhar, AIR 1958 All 573.