- (1.) THIS is a civil second appeal on behalf of Abdul Samad Chand Mohammad and mt. Asmat Nuri in a suit for possession of a room. Abdul Karim, father of. appellants and the appellants Abdul Sarnad and Chand Mohammad filed a suit against the defendant respondents for possession ot" a room in the Court of the munsif, Bundi, on the 6th of May 1949. The plaintiffs alleged that they were the owners of the disputed room and one Khudabux was in possession of it on their behalf and the defendants had illegally dispossessed him so'ne two months before the filing of the suit. They, therefore, claimed possession of it. During the pendency of the suit Abdul Karim died on the 1st February 1951. On the 18th April 1951, the two appellants Abdul Samad and Chand Mohammad who were already plaintiffs on record, applied that they were the legal representatives of their father abdul Karim. and that their names be substituted in place of the name of their father. On notice to the defendants respondents, they replied that Abdul Karim had left other heirs also namely another son Abdul Rahman, one daughter Mt. Asmat Nuri and the widow Mt. Kallu. The appellants Chand Mohammad and Abdul samad, thereupon, made an application on the 3cth July 1951, i hat their mother mt. Kallu had died sometime in October 1950 before the death of Abdul Karim and thtt Aodul Rehtnali and Mt. Asmat Nuri be made the leged representa-tives of abdul Karim. On the same date, two other applications were made one on behalf of Abdul Rehman and another on behalf of Mt. Asmat Nuri with the prayer that they might be made the legal representatives of Abdul Karim along with Abdul samad and Chand Moharamad. The learned Munsif held that the application dated the 18th April 1951, was not made by all the legal representatives of Abdul Karim and that the application dated the 30th July 1951, was made after the time prescribed under Article 176 of the Limitation Act, as such the suit abated as a whole. The appellants went in appeal to the Court of the Civil Judge, Bundi making abdul Rehman as one of the respondents along with the defendants. The learned civil Judge dismissed the appeal on the 3rd December 1951, agreeing with the learned Munsif. The learned Civil Judge further held that Abdul Samad and Chand mohammad had no interest in the room in dispute during the life time of Abdul karim and they could not prosecute the suit in their own right. Hence this second appeal on behalf of the defendants.
(2.) IT has been urged on behalf of the appellants that an application had been made by two of the legal representatives of the deceased plaintiff to be made party within the prescribed time and as such. the suit could not be dismissed as it did not abate under Order 22 Rule 3 of the Code of Civil Procedure and the other legal representatives of the deceased plaintiff could be made party even after the expiry of the period ot limitation prescribed under Article 176, It is further urged that the suit being a suit for possession against the trespassers, the appellants abdul Samad and Chand Mohammad who became tenants-in-common with Abdul rehman and Mt. Asmat Nuri, alter the death of Abdul Karim, could prosecute the suit instituted by Abdul Karim, who, it is conceded, was the sole owner of the room during his life time.
(3.) ON behalf of the appellants reliance is placed on the words 'legal representatives' occurring in Order 22 Rule 3 (1) of the Civil Procedure Code which runs as follows : "where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plainttiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. " It is urged that the words 'legal representative' do not mean all the legal representatives and that it is not necessary that an application for bringing all the legal representatives on record should be made. Reliance is pluced on the case of 'bhikaji Ram-chandra v. Purshotam' I L. R 10 Bom 220 (A ). In that case one Bhikaji ramchandra died during the pendency of appeal filed by him. Bhikaji had left three sons, two adults and one minor. Notice was served on the two adult sons bat they failed to apply within sixty days. The minor son applied within the time prescribed by law to be made a party. This application was rejected by the Court hearing the appeal on the ground that in consequence of the omission on the part of the two adult brothers to apply, the appeal abated. On appeal to the High Court by the minor son, the following observations were made by Sargent C. J. : "it is true that the complete legal representation as a fact is vested in him and his two brothers, but Section 366 only requires an application to be made by a person claiming to be the legal representative, to prevent the order of abatement being made. " The only question which arises, therefore is, how the appeal is to proceed, on the supposition that neither of the other brothers, as we assume to be the case, is willing to have his name placed on the record ? Under these circumstances, the respondent is entitled to have them made defendants, so that they may be bound by the decree. The minor son can then proceed with the appeal alone. " the facts of the above case clearly show that it had been brought to the notice of the Court that the deceased Bhikaji Ramchander had three sons who were the legal representatives. Under Order 22 Rule 3 (1) if an application is made disclosing all the legal representatives ot the deceased, the Ccurt may make an order that they may be made parties either as plaintiffs or as defendants.;