Dashrath Rao Kate vs Brij Mohan Srivastava

2. Two other substantial questions proposed by the appellant (respondent herein) before the High Court by the respondent herein were:

4. Few facts would have to be considered. Sukhiabai [sometimes referred to as Sankhyabai] who was the sister of the grandfather of the appellant/plaintiff, owned the house. She was issueless and the appellant/plaintiff was brought up by Sukhiabai and was living with her. The house in dispute was let out to the respondent herein as a monthly tenant and a written rent note was executed for that purpose. An application came to be filed initially in the year 1990 vide case No. 125/84- 85/90-7 before the Rent Control Authority for eviction against the present respondent. That eviction application was allowed by the Rent Control Authority and hence a Revision came to be filed vide C.R.No.198/96 in the High Court. It was during the pendency of this Revision that Sukhiabai died. The respondent impleaded one Arun and Ramesh claiming themselves to be class I heirs of Sukhiabai and eventually the Revision was allowed by the High Court and the High Court remanded the case to the Civil Court and directed that the questions as to whether intervention could be sought on the basis of the Will and as to whether the respondent was entitled to continue the suit, would have to be gone into by the Trial Court. Upon remand, the suit was numbered as 119-A/96 before the Civil Judge, Gwalior. The appellant/plaintiff moved an application for 4 amendment of the plaint and that amendment was allowed. Against that, the present respondent filed Civil Revision No.91/97, while deciding which, the High Court directed that the question of legal representative of deceased Sukhiabai had to be determined first and after determining the rights of legal representative, a proper party has to be impleaded as the legal representative and the party so impleaded as legal representative would alone have the right to amend the plaint.

5. The present appellant then filed an application to bring himself as the legal representative on record on the basis of the Will which was executed by Sukhiabai in his favour on 26.03.1990. The appellant/plaintiff examined one Prabhakar Rao as PW-2 on 01.09.1997. After due inquiry, the application of the present appellant was allowed by the Trial Court and that is how the present appellant was brought on record in place of Sukhiabai. This order was not challenged and it became final.

8. We are unable to agree with the reasoning of the High Court. 7

2) was not repeated all over again, it cannot be held that the appellant/plaintiff could be non-suited on this ground. 15

19. All this is apart from the fact that the tenant in this case could not have challenged the Will at all. He was an utter outsider and had no interest in the property as owner. Indeed, from the pleadings and evidence, it is clear that tenant-respondent has not even ventured to claim any rival interest against the appellant/plaintiff.

20. For all these reasons, we are unable to agree with the impugned judgment and we would choose to set aside the same and restore the two judgments of the Trial Court and Appellate Court. The appellant/plaintiff, therefore, succeeds with costs of Rs.25,000/-.