SB CIVIL MISC. APPEAL NO.3146/2008. Satish Sharma Vs. Chairman, Rajasthan Housing Board & anr. DATE OF ORDER: 14th September, 2009. HON'BLE MR. JUSTICE S.P. PATHAK Mr. Sandeep Jain for the appellant. Mr. Parag Rastogi for the respondents. This appeal has been filed against the order dated 26.3.2008 passed by the Additional District Judge No.2, Kota in Appeal No.43/2007 whereby application moved by the appellant on the basis of the Will to treat them as necessary party has been dismissed. After hearing submissions, what I find is that in a suit which was filed before the Civil Judge (Junior Division) South, Kota in relation to possession of the property which was of the Housing Board. The suit was filed by late Inder Sethi. The suit was dismissed and an appeal was preferred. Appellant Inder Sethi died during the pendency of the appeal and present appellant-applicant Satish Sharma claiming himself to be the legal representative of Late Inder Sethi on the basis of the Will moved an application, that has been dismissed. In the instant case, only on conjuctures and surmises of reading certain part of Will, the application moved by the appellant-applicant has been rejected. In my opinion, that cannot be a proper way to reject the application. The lis pending requires to be decided. In the instant case, when the applicant is claiming -2- to be the legal representative of the appellant, then the trial court ought to have allowed the application. In view of above, the order passed by the trial court dated 26.3.2008 requires to be set aside and the application moved by the appellant-applicant requires to be allowed. In the result, the appeal is allowed. The order dated 26.3.2008 is set aside and the application of the appellant is allowed. He be brought on record. The trial court shall proceed in the matter in accordance with law. (S.P. PATHAK,J) bblm