1 ca13504/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD Civil Application No. 13504 of 2010 in Second Appeal No. 198 of 2003 Abdul Raheman Qureshi & Ors Applicants V E R S U S Sk Mahemood-died-LRs & Ors Respondents Mr. C.K. Shinde, Advocate for the appellants Mr. Parag Barde, Advocate for respondent Nos. 1-a to 1-e & 2 Mr. A.S. Bajaj, Advocate for respondent No. 4 Mr. D.P. Palodkar, Advocate for respondent Nos. 7 to 12 CORAM : A.V. NIRGUDE, J. DATED : 18th August, 2011 PER COURT : 1. This application is moved by the children of one Khatunbee to becoming party to the proceeding. Khatunbee was original defendant No. 3. It is a suit for partition. The respondent No. 3 (plaintiff) filed the suit for partition and made Khatunbee and others as party – defendants saying that she was entitled to certain share in the suit property. She thereby admitted that Khatunbee too had certain share in the suit property. Her suit was however dismissed. The respondent No. 3 (plaintiff) then filed first appeal, and during pendency of the first appeal, Khatunbee died in the year 1997. Respondent No. 3 (plaintiff) stated that she would not continue the suit as against Khatunbee because of her death. She did not state whether Khatunbee had left any legal representative, because she did not want to continue the appeal as against Khatunbee. In view of this, learned 2 ca13504/10 Judge of the first appeal Court was justified in dismissing the appeal as against Khatunbee. The appeal in fact was abated as against Khatunbee, because of her death. The learned Judge of the first appeal Court after hearing the appeal, allowed the appeal and decreed the suit of respondent No. 3 (plaintiff). Against this decree, the present appeal is filed by the legal representatives of the original defendant No. 1 and defendant No. 2. 2. The applicants who claim that they are children of Khatunbee, have brought on record sufficient material to justify their claim that they indeed are children of Khatunbee. The respondents as well as the appellants did not place any material on record to deny the claim of the applicants. So, there is practically no question required to be decided as to whether the applicants are in fact the legal representatives of deceased Khatunbee, as contemplated by provisions of Order XXII Rule 5 of Code of Civil Procedure. I am, therefore, not inclined to send this question of fact to be decided by the trial Court. ORDER The application is allowed. The applicants be made party – respondents. ( A.V. NIRGUDE, J. ) srm/ca/13504/10/18/8/11