(1) sa775-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 775 OF 2010 Shrikant Parashram Dhas Since deceased, by L.Rs. Sunita Shrikant Dhas & others APPELLANTS VERSUS Rajkumar Atmaram Dhas & others RESPONDENTS .... Mr. A.S. Gaikwad, advocate for the appellant. Mr. Sandeep S. Deshmukh, advocate for the Respondent Nos. 1 to 8. .... WITH SECOND APPEAL (STAMP) NO. 2575 OF 2011 Rajkumar s/o Atmaram Dhas & others APPELLANTS VERSUS Parasram s/o Atmarao Dhas Since deceased, by L.Rs. Shrikant s/o Parashram Dhas & others RESPONDENTS .... Mr. Sandeep S. Deshmukh, advocate for the appellants. .... CORAM : M.T. JOSHI, J. DATED : 18th AUGUST, 2011 PER COURT : 1. Second Appeal No. 775 of 2010 is admitted with consent of the parties. Consequently, another Second Appeal (Stamp) No. 2575 of 2011, which was not on Board and with consent of the parties, is taken on Board, is also admitted. (2) sa775-10 2. The suit bearing Regular Civil Suit No. 285/1982, for effecting partition and separate possession of the suit properties, was decreed by the Trial Court and it was confirmed by the First Appellate Court in entirety. However, during pendency of the appeal (R.C.A. No. 116/2006), Tulsidas Atmaram Dhas - the respondent No. 2 in the said appeal had died. Respondent Nos. 1 and 3 to 6 in the said appeal claiming to be the brothers of deceased Tulsidas had applied for bringing them on record as Legal Representatives. On the other hand, the respondent No. 1 in that appeal, namely, Rajkumar Atmaram Dhas also made an application for bringing him on record as Legal Representative of deceased Tulsidas as a legatee by setting up a Will from said Tulsidas. The said application was not decided and the respondent Nos. 1 and 3 to 6 in the said appeal were directed to be brought on record as Legal Representatives of deceased Tulsidas by the First Appellate Court without making any enquiry into the rival claims of the respective parties. Ultimately, however, at the time of passing of the decree, the First Appellate Court has held that the plaintiff (3) sa775-10 Nos. 1, 2 and 3 (which included already deceased respondent No. 2 Tulsidas in the First Appellate Court) had equal share in the suit property and lastly, the appeal was dismissed. 3. The grievance of the appellants as well as the respondents (in Second Appeal St. No. 2575/2011) is that the learned First Appellate Court did not determine the question as to who was the Legal Representative of deceased Tulsidas. 4. Heard both sides. 5. The provisions of Rule 5 of Order-XXII of the Code of Civil Procedure read as under : "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, (4) sa775-10 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." 6. In the circumstances, the First Appellate Court ought to have determined the question itself or could have directed the Trial Court to try the question and to return the records together with the evidence, if any recorded by the trial Court with findings and reasons therefor. In view of the above circumstances, the decree passed by the First Appellate Court only to the extent of declaring the share of deceased Tulsidas is hereby quashed and set aside. The First Appellate Court is directed to determine the question in the appeal that was raised before it as per the provisions of Rule 5 Order-XXII of the Code of Civil Procedure and to record findings as to whom of the rival claimants is/are entitled to be the Legal Representative/s of deceased Tulsidas. Both the Second Appeals are disposed of accordingly. [M.T. JOSHI, J.] NPJ/sa775-10