JUDGMENT M.M. Gopal, Member - This is a second appeal against the judgment dated May 15, 1985 by which the learned Commissioner has dismissed the appeal and upheld the judgment of the trial court dated May 9, 1984 by which the trial court dismissed the suit. 2. Heard the learned counsels for the parties and have also perused the files. 3. The facts of the case are that a suit under Sections 229-B/176 of the U.P. Act I of 1951 was filed by Mst. Tulsia (alias Tulsi) daughter of Moti Lal against Laxmi Raj Singh, Tula Ram with the allegation that the land in suit belonged to the family of her father and her uncle executed a sale-deed in her favour in the year 1933 through a registered deed. Hence she acquired right and defendants have no right or interest over the land in suit. The defendants have denied the rights and filed written statement also. Issues were framed. During the pendency of the suit it so happened that the plaintiff Smt. Tulsia died, hence an application was filed for the substitution by one Sheo Narain with a prayer that he may be substituted in place of deceased Smt. Tulsia as she died during the pendency of the suit and has executed a will dated October 13, 1983 in favour of Sheo Narain. 4. While deciding the substitution application the court below has dismissed the suit by its order dated May 9, 1984 and held that the suit was barred under Section 11, C.P.C. Principle of res-judicata applied and it is also held that the plaintiff was not recorded. Hence she has no right to execute a will in favour of Sheo Narain. The learned Commissioner has dismissed the appeal and passed the following order: - "MAINE PATRAVALI KA AVLOKAN KIYA TATHA DONO PACHHO KE VIDWAN VAKILO KO SUNA PARIT ADESHO ME KOI ANAMIVATA ISLIYE NAHI HAI KYOKI LAXMIRAJ SINGH KE HAK ME ADESH CIVIL JUDGE KE ADESHO KO DHYAN ME RAKHTEY HUE HI PARIT KIYA GAYE HAI APPEAL KARTA KO YADI KOI RAHAT MIL SAKTI HAI TO VAH DIWANI NYALAYA SE HI MIL SAKTI HAI RAJESVA NYALAYA DVARA PARIT ADESH VIDHIVAT HAI EN ME KISI BHI HASTCHAP KI AVASHAKTA NAHI HAI APPEAL ME BAL NAHI HAI TATHA NIRAST HONE YOGYA HAI." 5. It appears that the courts below have passed the order just by committing a mistake apparent on the face of it. There was a substitution application and it was to be decided. But while deciding the substitution application the matter has been looked into and the whole suit has been decided. In the substitution application it is to be seen whether the person is in a position to look after the interest of the deceased and to continue the litigation or not. In other words, the interest of the person concerned is not adverse to the deceased person is to be seen. But whereas in the present suit the matter has been decided as if the heirship was to be finalised and not the question of legal representative, is to be decided in place of the deceased. 6. The trial court has thus committed an illegality while dismissing the suit and the judgment of the lower appellate court is no judgment in the eyes of law. The principles of res-judicata is to be applied as laid down in Section 11 of the C.P.C. But this question can only be decided when the parties are not in a position to adduce the evidence on the question and then the matter may be decided as provided under law. Here the substitution has not been done from one side and the matter has been decided on merits by the courts below. Thus both the courts have committed an illegality apparent on the face of it. 7. I therefore allow the second appeal, set aside the judgments of the courts below dated May 15, 1985 and May 9, 1984 remand the case to the trial court for disposing off the application or suit in accordance with law and on the basis of the observations made above. 8. Costs easy.