S.B.Civil Misc. Appeal No.345/04 Bhura Ram & ors. vs. LRs.of late Devichand & ors. 1 S.B.Civil Misc. Appeal No.345/2004 Bhura Ram & ors. vs. LRs. of late Devichand & ors. Date of Order: 17.9.2008. PRESENT HON'BLE MR. PRAKASH TATIA, J. Mr. H.R. Soni or the appellants. Mr. R.R. Nagori for the respondents. Heard learned counsel for the parties. The appellant's suit was dismissed as abated by the order dated 4.4.2003 on account of death of defendant nos.1 and 2 as well as on account of death of plaintiff no.1. Defendant no.1 died on 12.3.1997. Intimation was given in the court by learned counsel for defendant no.1 on 17.7.1997. The application for bringing on record the legal representatives of defendant no.1 along with application for setting aside of abatement was filed on 19.7.1997. The suit was dismissed by the trial court on the ground of delay. The facts referred above itself shows that the reasons given by the trial court cannot be sustained in the eye of law and, therefore, the part of the order rejecting the application for bringing on record legal representatives of defendant no.1 is set aside and the S.B.Civil Misc. Appeal No.345/04 Bhura Ram & ors. vs. LRs.of late Devichand & ors. 2 application under Order 22 Rule 9 and Order 22 Rule 4, CPC are allowed and the legal representatives are taken on record. The another application of the plaintiffs for exempting the plaintiffs from bringing on record the legal representatives of defendant no.2, who already alienated the property in question in favour of defendant no.1, was rejected by the trial court on the ground that defendant no.2 Lumba Ram died on 27.4.1996 and the application was submitted by the plaintiffs after six years. The application was dismissed on the ground of delay. The learned counsel for the respondents submitted that in a case for cancellation of sale-deed, the vendor is also a necessary party. It is true that in the facts of the case, the vendor may be necessary party but the vendee is required to defend the title of his vendor and in that situation, the vendor may become the relevant witness in the suit. It depends upon the facts of the case. In this case, the sale-deed was executed as back as on 19.7.1997 and it appears from the suit which was filed in the year 1995 that none of the heir of the vendor Lumba Ram-defendant no.2 challenged the sale-deed. In the peculiar facts of the case, since the interest devolved on the plaintiffs S.B.Civil Misc. Appeal No.345/04 Bhura Ram & ors. vs. LRs.of late Devichand & ors. 3 whose legal representatives have already been taken on record, I do not find just reason for abating the suit against defendant no.1, who claimed his possession of the property since 1977 on the basis of sale-deed executed by defendant no.2. The time passed between the sale-deed and filing of the suit cannot be ignored. It will be worthwhile to mention here that there is a lot of difference between legal heir and legal representatives as two words have been used in the Code of Civil Procedure with specific purpose and, therefore, also I am of the opinion that the trial court's not exempting the appellants-plaintiffs from bringing on record the legal representatives of defendant no.2, the legal representatives who sold the property in the year 1977, appears to be wrong. Once the party is exempted from bringing on record the legal representative of defendant then the decree can be passed by the court which binds the legal representatives of deceased and in view of the reason that according to the plaintiffs and defendant no.1, it is a dispute with respect to devolution of interest of the vendor in favour of defendant no.1, therefore, the appellants-plaintiffs are exempted from bringing on record the legal representatives of S.B.Civil Misc. Appeal No.345/04 Bhura Ram & ors. vs. LRs.of late Devichand & ors. 4 defendant no.2. The third application was submitted for striking out the name of plaintiff Deepa Ram who died on 16.2.1996. Deepa Ram's estate is being represented by the other plaintiffs and the trial court was wrong in holding that because of non-joining of one of the legal representative, sister of plaintiff Deepa Ram, the suit abated. In view of the above reason, the appeal is allowed. The name of plaintiff Deepa Ram is deleted. The legal representatives of defendant no.1 Devi Chand are taken on record. The appellants-plaintiffs are exempted from bringing on record the legal representative of defendant no.2. Both the parties are directed to appear before the trial court on 15.10.2008. (PRAKASH TATIA),J. mlt