JUDGMENT The judgment of the Court was as follows :- This second appeal is by the defendants nos. 2, 3 and 6 of the original suit. 2. The plaintiffs, two in number, filed the original suit against the six defendants for recovery of khas possession of the suit premises which is a house. Defendant no. 1 is the tenant. Previously plaintiff no. 1, Narayan filed a suit against the defendant no. 1 for eviction and in that suit it was found that there was no relationship of landlord and tenant as between Narayan and the defendant no.1, Ramani Mohan. Subsequently, the plaintiff no.1 Narayan and the plaintiff no. 2 Sankaribala Dassi jointly filed the present suit for eviction of the defendants. In this suit, the material allegations were that originally Bipin and Madhav, two brothers were the owners of the house. Bipin possessed the southern portion and Madhav enjoyed the northern portion. Bipin left a will giving his properties to his wife Sushila. Sushila took the probate of the will and the gifted some of the properties she got from her husband to Paritosh Kumari, her sister and her share in the suit property in the southern portion was given to Paritosh Kumari's son Shyamapada by a will. After the death of Sushila, Shyamapada took the propate of the will and possessed the property. After his death, the property devolved upon his mother and ultimately upon his brother Ramapada Ghosh. The other half of the suit house which was possessed by Madhav Ghosh was also given to his wife Elokesi on the basis of a will. Elokesi possessed that property and made a gift of the Same to one Shibaram Ghosh. Shibaram died leaving his wife Swetbarani and four sons including the plaintiff no. 1. In R.S. khatian the disputed portion of the property has been recorded in the name of Swetbarani alone. Paritosh Kumari while living in the southern portion of the suit house let out the upper story of that portion to different tenants. After his death, her son Ramapada inherited her properties and began to possess the suit property in his own right for more 12 years. Ramapada made a gift of his share of the suit property to his niece, Sankaribala, the plaintiff no. 2 and she transferred the property to plaintiff no. 1. After his death, her son Ramapada inherited her properties and began to possess the suit property in his own right for more 12 years. Ramapada made a gift of his share of the suit property to his niece, Sankaribala, the plaintiff no. 2 and she transferred the property to plaintiff no. 1. Subsequently, as some doubt was raised regarding the legality of this transfer, both the plaintiffs have started the present action after the dismissal of the previous suit for evicting the defendant no. 1. The defendant no. 1 and the defendant nos. 2, 3 and 6 contested the suit. Defendant no. 1 pleaded that he was a tenant under the predecessor in-interest of the defendant nos. 2, 3 and 6 and challenged the title of the plaintiffs in the suit premises. The defendant nos. 2, 3 and 6 also challenged the title of the plain tiffs. 3. The trial court on the evidence on record held that plaintiff no. 2 was entitled to get a decree for recovery of khas possession by evicting the defendants from the suit property which is in possession of the plaintiff no. 2. It was held by the trial court that Paritosh Kumsri and Ramapada possessed the suit house in their own right' and had undoubtedly acquired title by adverse possession and the allegations of transfer made in the plaint were not proved to be false or illegal. It has been specifically found by the trial court that none of the defendants had any title in the suit property and that the defendants have no right title and interest in it. It was decided by the trial court that Sankaribala the plaintiff no. 2 bas right, title and interest to the suit house as claimed. All the defendants were declared to be trespassers and they were found to have colluded with one another. The right, title and interest of the plaintiff no.2 was declared and she was directed to get khas possession by evicting the defendants. The plaintiff no. 2 was also found to be entitled to get mesne profits as indicated there. 4. Against that decision, an appeal was taken to the District Judge by the defendant nos. 2, 3 and 6. Plat appeal has been dismissed and the findings of the trial court were accepted. I have heard Mr. Lala, the learned Advocate appearing on behalf of the appellants and Mr. 4. Against that decision, an appeal was taken to the District Judge by the defendant nos. 2, 3 and 6. Plat appeal has been dismissed and the findings of the trial court were accepted. I have heard Mr. Lala, the learned Advocate appearing on behalf of the appellants and Mr. Banerjee for the contesting respondent, Sankaribala Dassi, the plaintiff no. 2. 5. The main point of law urged by Mr. Lala on behalf of the appellants is that the courts below ought to have held that the will of Shyamapada, the basis of the title of the plaintiff no. 2 was ineffective and no title to the suit property passed on the basis of the said will as Shyamapada did not take out any probate of the will from the court and as Sankaribala obtained a probate in the name of Shyamapada, already dead, issued from the court. Mr. Lala wants to say that at best Sankaribala ought to have obtained letters of administration from the court in respect of the will executed by Shyamapada and that the probate issued to Sankaribala by the court in the name of Shyamapada was illegal and cooperative. 6. The question, therefore, is whether Sankaribala got any title to the suit property on the basis of the will of Shyamapada and whether the plaintiff no. 2 could claim title on the basis of the said will. The application made by Sankaribala for issue of probate has been marked Ext. D. It was filed on 11.7.63 in connection with the Probate Case No. 10 of 1931 disposed of on 1.8.1931. Ext. 17 is the petition filed by Shyamapada for is we of probate in his name in connection with the will executed by Sushila Dassi. In that application the suit property has been mentioned. It was filed on 27.5.1931 before the Court of the Subordinate Judge, Birbhum. Ext 16 is the certified copy of the orders passed by the Subordinate Judge of Birbbum in Probate Case No. 10 of 1931 in which Shyamapada Mondal was the petitioner. This relates to the orders passed in connection with the application filed by Shyamapada marked Ext. 17. Order dated 1.8.1931 shows that witness was examined, the will in question was proved and there was an order "that pre bate be allowed to the applicant-executor as prayed' for". This relates to the orders passed in connection with the application filed by Shyamapada marked Ext. 17. Order dated 1.8.1931 shows that witness was examined, the will in question was proved and there was an order "that pre bate be allowed to the applicant-executor as prayed' for". This was the order disposing of the probate case in question allowing probate to Shyamapada as prayed for by him. Upon the application of Sankaribala filed on 11.7.63 evidenced by Ext. D, we find that the probate was issued by the Subordinate Judge, Birbhum, the District Delegate on 4.10.63 with a copy of the will annexed. That probate was issued to Sankaribala. In the probate it is stated that it was granted to Shyamapada Mondal. Mr. L3la's contention, as I have already indicated, is that as it was a probate granted to Shyamapada Mondal already dead, it was of no value when it was issued to Sankaribala and that the will was ineffective. From the exhibits, as already mentioned, it is clear that the will of Sushila was already considered by the District delegate and the Court allowed probate to Shyamapada Mondal relating to the will of Sushila. There is no dispute from either side that as soon as the will is probated and the probate is allowed, the will becomes effective. The question, therefore, is whether the issue of probate in the name of Shyamapada to Sankaribala rendered the will inoperative. 7. My attention has been drawn to Section 222 of the Indian Succession Act which says that the probate shall be granted only to an executor. There is no dispute about this position in law. Sankaribala, according to Law, was entitled to apply for letters of administration of the estate or to distribute the assets, if necessary. Only the executor appointed by the will can claim probate. In the present case, Shyamapada, the executor, applied for probate and in fact the court granted the probate to him and as soon as the probate was allowed by court, the will became active and effective and the legatees could claim title to the properties under the will. In this connection Mr. Banerjee referred to the decision of a Division Bench of this Court in the case of (1) Hare Ram Singh Chowdhury v. Ram Ram Singh Chowdhury reported in 27 CWN 285. In this connection Mr. Banerjee referred to the decision of a Division Bench of this Court in the case of (1) Hare Ram Singh Chowdhury v. Ram Ram Singh Chowdhury reported in 27 CWN 285. There, it was held that the probate should be taken as granted on the day when an order to that effect is passed and not the date when the order for issue of the probate is passed. When on 1.8.1931 probate was allowed to Shyamapada, the will of Sushila bad all legal force so long as the order of probate would stand. My attention has been drawn by Mr. Lala to the decision of this Court in (2) Sarat Chandra Banerjee v. Nani Mohan Banerjee, reported in ILR XXXVI Cal 799. But, that case is of no help in the facts and circumstances of the case before me. In that case the question arose whether a wife could substitute her name for her husband in probate proceedings for getting letters of administration and it was held that the right to sue in Order XXII of the C.P. Code means the right to bring a suit ascertaining a right to the same relief which the deceased plaintiff asserted at the time of his death and that a right to obtain probate of a will is a right different in its nature from a right to be appointed by the court to administer the deceased's estate. In the case before me, the probate was already allowed and therefore, there can be no question of substitution. On the other hand, if necessary, a person other than an executor could apply for letters of administration to complete the administration of the estate, and if no such letter of administration was taken, the legal effect of the will was not to disappear. In my view, the unconditional order for grant of probate in the final order of disposal of the probate proceedings and it matters not whether the probate is actually issued to the applicant or not. With the passing of that order, the will becomes effective and operative unless such grant of probate is revoked according to the law. I do not find any substance in the argument of Mr. With the passing of that order, the will becomes effective and operative unless such grant of probate is revoked according to the law. I do not find any substance in the argument of Mr. Lala when he says that the will of Sushila became worthless as no probate was actually issued to Shyamapada and as the probate in the name of a dead person, Shyamapada, was issued to Sankaribala. The order for issue of probate is but a consequential order based upon the order allowing probate. 8. Apart from the legal question raised by Mr. Lala as indicated above. the illegality, if assumed in the matter of issue of probate, will not be of any help to the appellants in the present case in view of the fact that the court below found title of the disputed property with the plaintiff no. 2 through her predecessor in interest by adverse possession that finding bas given a death blow to the defendants. There is no reason to interfere with the same in this second appeal. Besides, the defendant no. 1, the tenant against whom there was the decree for eviction did not file any appeal against the decree passed. 9. Lastly, an attempt was made from the side of the appellants that the decision in the previous suit between the plaintiff no. 1 and the defendant no. 1 should have been considered by the courts below to find that the present suit is barred by the principles of resjudicata. I am afraid, that contention is unacceptable. In the previous suit the plaintiff no. 2 was not a party and moreover, in the present case, the plaintiff no. 2 has obtained the relief and there can be no application of the principles of resjudicata. 10. In the result, the appeal is dismissed on contest, with costs in favour of the contesting respondent no.1 in this appeal. Let the lower court records go down as early as possible.