- (1.) HEARD the learned counsel for petitioners.
(2.) PETITIONERS have preferred this revision petition challenging the impugned order dated 22.07.1999 passed by the Civil Judge(Junior Division), Jaipur City(West), Jaipur in Civil Suit No.249/1991, whereby application filed by petitioners under Order 22 Rule 3 CPC has been dismissed. It is borne out from the impugned order that initially Smt. Kamla Goswami filed the present suit for possession and mesne profit in the trial Court first time on 19.02.1982 and on her death, an application under Order 22 Rule 10 CPC was filed by one Mahant Janki Jeevan Sharan Ji, which was allowed and Mahant Janki Jeevan Sharan Ji was substituted in place of original plaintiff Late Smt. Kamla Goswami. Mahant Janki Jeevan Sharan also died on 13.11.1998, therefore, present petitioner Nos.2 to 12 moved an application under Order 22 Rule 3 CPC for their substitution in his place on the ground that a trust was created by Late Mahant Janki Jeevan Sharan on 26.09.1991 in respect of disputed property and they are the trustees, therefore, to protect the interest of trust property, trustees/applicants be substituted in his place. Learned trial Court rejected the said application vide order dated 22.07.1999, which is under challenge in this revision petition. Submission of the learned counsel for petitioners is that defendants/ respondents were trespasser, therefore, a suit was filed for possession and grant of mesne profit. Mahant Janki Jeevan Sharan, the plaintiff, had created a trust in respect of disputed property on 26.09.1991 and petitioner Nos.2 to 12 were made trustees in the said trust. Since Mahant Janki Jeevan Sharan has expired, therefore, petitioner Nos.2 to 12 moved an application under Order 22 Rule 3 CPC being legal representatives as they were trustees of the trust, which was created to manage the disputed property, therefore, their application should have been allowed, but the learned trial Court committed an illegality in rejecting their application. No one is present on behalf of respondents despite service of notice upon them. I have considered the submissions of the learned counsel for petitioners and examined the impugned order passed by the trial Court.
(3.) FROM the impugned order, it reveals that a suit for possession and grant of mesne profit was initially filed on 19.02.1982 by one Smt. Kamla Goswami and after her death, Mahant Janki Jeevan Sharan was substituted in her place under Order 22 Rule 10 CPC. Mahant Janki Jeevan Sharan had created a trust in respect of disputed property on 26.09.1991 and applicants/petitioner Nos.2 to 12 were made trustees in the said trust. After creation of trust on 26.09.1991, the disputed property became trust property, therefore, I find that after death of Mahant Janki Jeevan Sharan, the plaintiff, the trustees of the trust should have been substituted in place of Mahant Janki Jeevan Sharan. The trial Court committed an illegality in rejecting the application of applicants/petitioner Nos.2 to 12 under Order 22 Rule 3 CPC. It is relevant to mention that there is difference between legal heirs and legal representatives. It is always open for the defendants to take objection whether newly impleaded legal representatives in place of deceased/plaintiff are competent to continue the suit or not. When the matter is pending in respect of property, then someone has to be substituted in place of plaintiff when plaintiff dies. In these circumstances, the application filed by applicants/petitioner Nos.2 to 12 is liable to be allowed. Consequently, the revision petition is allowed. Impugned order dated 22.07.1999 passed by the trial Court is set aside. Application dated 06.02.1999 filed by applicants/petitioner Nos.2 to 12 under Order 22 Rule 3 CPC is allowed and they are substituted as plaintiff Nos.1 to 11 in place of deceased/plaintiff Mahant Janki Jeevan Sharan. ;