Banwari Lal Sharma, J. - (1.) Learned counsel for the appellants Shri Alok Chaturvedi submits that the eviction suit under the provisions of Transfer of Property Act was filed by the landlord plaintiff respondent against one legal representative of late Shri Beniprasad Bansal. He submits that admittedly there are four sons of late Shri Beniprasad Bansal and respondent plaintiff served notice u/s. 106 of the Transfer of Property Act to one Shri Prakash Chand Bansal only. He submits that as per Sec. 19 of Hindu Succession Act, the appellant applicant is also legal representative of late Shri Beniprasad Bansal as tenant in common without taking him on record and impleading him as party defendant, the decree passed by the trial court as well as the appellate court is nullity. He submits that he has filed an application for impleadment under O. 1 R. 10 CPC before the lower appellate court which was wrongly dismissed and liberty was given by the co -ordinate Bench of this curt for taking appropriate legal remedy for filing appeal and this appeal is filed by the appellant after seeking leave to appeal by this court. Therefore, same may be allowed. He relied on Textile Association (India) Bombay Unit vs. Balmohan Gopal Kurup and Another - reported in : (1990) 4 SCC 700.
(2.) Per contra, the learned counsel for the respondent plaintiff Shri D.K. Garg submits that previously appellant filed an application under O. 1 R. 10 CPC before the trial court which was dismissed. Against which, writ petition was filed by the appellant, that too was dismissed as withdrawn with liberty to file appeal but the appellant Ramesh Chand and others without filing first appeal, directly filed this second appeal, which is not maintainable. He submits that as per para 9 of the memo of appeal, the appellant has also instituted a suit for declaration and for permanent injunction against the respondents and against the daughters of Beniprasad which is also pending. Apart from it, objections under O. 21 R. 97, 98 & 101 read with Sec. 151 CPC have also filed by the appellants before the executing court. He submits that during pendency of the suit, the second appeal is not maintainable. He also submits that as per application of the appellant filed under O. 1 R. 10 CPC, he never pleaded that he was ever continued in business in the rented shop with late Shri Beniprasad Bansal. Therefore, provisions of Sec. 19 of the Hindu Succession Act are not applicable as this is the case of landlord and tenant. He submits that there is concurrent finding of both the courts below which does not require any interference. He submits that respondent No. 2 Dr. Prakash Chand Bansal also filed civil second appeal against the impugned judgment being S.B. Civil Second Appeal No. 83/2015, which was decided on compromise vide judgment dated 20.2.2015. Therefore, no question arises for entertaining this second appeal filed by the appellants, which were not party before the trial court as well as lower first appellate court.
(3.) I have considered the submissions made at Bar.;