JUDGMENT A.H. Saikia, J. 1. This Second Appeal has been directed against the appellate judgment and order dated 04.03.1996 passed by the learned Additional District Judge, Manipur West in Civil Appeal No. 20/94/5 of 1995, setting aside the judgment and decree dated 29.02.1980 passed by the learned Subordinate Judge No. 1, Manipur in Original Suit i.e. O.S. No. 19 of 1978 by which the suit instituted by the Plaintiffs/Appellants was decreed declaring that the Defendants/Respondents No. 1 to 4 had no right or title to the suit land and accordingly they had no right to eject the Plaintiffs/Appellants from the suit land and the Plaintiffs'/Appellants' possession over the suit land was confirmed. 2. When this Second Appeal was admitted on 27.05.1996, no substantial question of law was formulated except passing the following relevant order: Heard Mr. A. Nilamani Singh, learned Sr. Advocate appearing on behalf of the Appellant. The learned Sr. Advocate has submitted that in the present case some important questions of law are to be decided and one of them is whether the right to sue survives after the death of the sole Defendant who has been impleaded in representative capacity. I think there are other legal questions apart from the aforesaid points, which are required to be decided in the case. The appeal is admitted. Call for the lower Court record. When the matter, being a long pending case, has been up for final hearing on 03.06.2004. Mr. Nilamani Singh, the learned Sr. Counsel has stated that the following substantial question of law in view of the order dated 27.05.96, as noticed above, may be formulated- Whether the right to sue survives after the death of the sole Defendant who has been impleaded in representative capacity. Mr. I. Brojendra, learned Counsel appearing for the Respondents has also conceded to the formulation of the above substantial question of law and accordingly the same has been formulated as substantial question of law to be decided in this Second Appeal. 3. For the purpose of determination of the above substantial question of law, it would be appropriate and necessary to notice the relevant facts of the case in a short compass. The Appellants and the Respondents are inhabitants of Ukhrul Hill Village and Huining Hill Village respectively. Both these Hill villages of Ukhrul and Huining are adjacent to each other. 3. For the purpose of determination of the above substantial question of law, it would be appropriate and necessary to notice the relevant facts of the case in a short compass. The Appellants and the Respondents are inhabitants of Ukhrul Hill Village and Huining Hill Village respectively. Both these Hill villages of Ukhrul and Huining are adjacent to each other. The former lies to the East and later to the West of their common boundary stream called Kasom-Kong. The northern most part of the Appellants' village Ukhrul is known as Somsai which is a common land of the village of Ukhrul compromising of an area of two miles in length and about two miles in breadth wherein lies amongst others the Ukhrul old bazaar and a number of paddy fields of the villagers of Ukhrul and this Somsai itself is the suit land in the present case. It is claimed that the villagers of Ukhrul have from time immemorial been in use, enjoyment and otherwise in possession of the suit land as their common village land to the exclusion Huining village and other adjacent villages. In the past there were litigations between villagers of Ukhrul and Huining regarding the suit land as the villagers of Huining tried to possess certain plots of land inside the suit land. All those suits were instituted by some villagers of Huining in the Court of SDO/Munsiff, Ukhrul namely (1) Civil Suit No. 99 of 1949-50; (2) Civil Suit No. 213 of 1951-52 and (3) Civil Suit No. 52 of 1960 which were dismissed on 27.02.1952, 13.12.1952 and 25.05.1964 respectively. In all those Civil Suits it was held that the suit land is the part of Ukhrul village and it was possessed by the Ukhrul villagers as their common village land. 4. In order to settle the dispute finally as regards the title and possession over the suit land, the Defendants/Respondents No. 1 to 4 representing all the villagers of Huining, instituted a Civil Suit No. 32 of 1960 renumbered as Civil Suit No. 32/60/20/66, herein after referred to as the previous suit on 20.07.1960 in the Court of 1st Subordinate Judge of Manipur against one Mishivam Khullakpa of Ukhrul village in his representative capacity on behalf of the villagers of Ukhrul. In that suit, the Defendants/Respondents as Plaintiffs representing Huining village claimed the relief for declaration that the suit land belonged to them and also for a permanent injunction for eviction of the villagers of Ukhrul from the suit land on the allegations inter alia that the villagers of Huining had been ousted from the possession of the suit land in 1951. 5. Since the suit was instituted by the Defendants/Respondents representing the villagers of Huining against the said Mishivam Khullakpa, Defendant No. 1 of Ukhrul village in representative capacity, the learned Subordinate Judge passed an order on 23.08.1960 for issuance of notice to the effect that since the suit was brought against the Defendant No. 1, Mishivam Khullakpa of Ukhrul Village in representative capacity, any one willing to join in the said suit on either side might appear on 03.11.1960 before the Court and apply to be made a party. Accordingly on 03.11.1960, all the parties in the suit including Defendant/Respondent Nos. 1 to 4 and the said Mishivam Khullakpa arrayed as Defendant No. 1 were allowed to sue or to be sued in their representative capacity respectively. On the same day, one T. Luikham, M.K. Shimray and S. Kanrei made an application to the Court for making them party on the side of Defendant in the said suit and accordingly the learned 1st Subordinate Judge allowed their application and directed to amend the plaint and accordingly the re-cast plaint was submitted incorporating the names of those persons above mentioned arraying them as party Defendant Nos. 2, 3 and 4 respectively. 6. During pendency of the suit, M.K. Shimray who was arrayed as party Defendant No. 3 and Mishivam Khullakpa Defendant No. 1 in the previous suit, died on 16.03.1967 and 31.12.1968 respectively. But the Defendants/Respondents No. 1 to 4 did not take any steps to substitute the legal representatives of those two Defendants who would be the representatives of the villagers. Ultimately the learned Subordinate Judge by his judgment and order dated 15.10.1969 decreed the suit ex parte as those Defendants did not appear to contest the previous. But the Defendants/Respondents No. 1 to 4 did not take any steps to substitute the legal representatives of those two Defendants who would be the representatives of the villagers. Ultimately the learned Subordinate Judge by his judgment and order dated 15.10.1969 decreed the suit ex parte as those Defendants did not appear to contest the previous. Suit declaring that the Plaintiffs now Defendants/Respondents in the instant case had the title over the suit land and also granted permanent injunction restraining the Defendant No. 1 and his co-villagers now Plaintiffs/Appellants from interfering with the peaceful possession of the suit land and enjoyment from the forest produce therefrom and that Defendants villagers be ejected from the suit land. 7. Though, after passing of the aforesaid judgment and decree, the matter was brought before the higher Courts, including the High Court, the dispute between the parties i.e. the villagers of the two villages above mentioned regarding the suit land could not yet be settled. 7. Though, after passing of the aforesaid judgment and decree, the matter was brought before the higher Courts, including the High Court, the dispute between the parties i.e. the villagers of the two villages above mentioned regarding the suit land could not yet be settled. Eventually the present Original Suit being O.S. No. 19 of 1978, hereafter called as 'the instant suit', before the Court of Subordinate Judge No. 1 Manipur, Imphal was instituted by the present Appellants as Plaintiffs in representative capacity on behalf of themselves and also on behalf of other villagers of Ukhrul village against the Respondents arraying them as Defendants who were the initial Plaintiff's in the previous suit, in their representative capacity on behalf of themselves and on behalf of other villagers of Huining Hill village, alleging inter alia that during the pendency of the previous suit, the Defendant No. 1 in the previous suit who alone represented the villagers of Ukhrul sued in representative capacity died on 31.12.1968 but no application was filed by the Plaintiffs of the previous suit for substitution of the legal representative of the said deceased i.e. for impleadment of another villager of Ukhrul village to be made a representative of the villagers and as such, the judgment and decree passed on 15.10.1969 in the previous suit was a nullity and not binding upon the Plaintiffs/the present Appellants and sought for the following reliefs: That the Plaintiffs pray- (a) That they be given permission to sue on behalf of all inhabitants of Ukhrul Hills Village excepting the Defendants No. 5-7, and to have the Defendants No. 1-4 sued on behalf of all inhabitants of Huining Hill Village, under Order I, Rule 8, Code of civil Procedure. (b) That a decree be passed declaring that the Defendants No. 1-4 and their villagers have no title better than the Plaintiffs and their villagers to the suit-land, that the former have no right to eject the latter from the suit-land and/or confirming the latter's possession of the suit- land. (c) That a perpetual injunction be issued restraining the Defendants No. 1-4 and their representatives/privies from disturbing the Plaintiffs' possession and enjoyment of the suit- land or from otherwise invading the latter's right to the quiet possession and enjoyment of the suit land. (c) That a perpetual injunction be issued restraining the Defendants No. 1-4 and their representatives/privies from disturbing the Plaintiffs' possession and enjoyment of the suit- land or from otherwise invading the latter's right to the quiet possession and enjoyment of the suit land. (d) That any other/further relief's that the Plaintiffs be found entitled to in law or equity be granted, and (e) That costs of the suit be awarded against the Defendants No. 1-4. 8. The present Respondents who had been arrayed as Defendants No. 2 to 4, contested the instant suit by filing written statement and denying all the allegations made in the plaint, they averred that the Defendant No. 1, Mishivam Khullakpa in the previous suit was not alone representing the villagers of Ukhrul and there were other 3 (three) Defendants who were allowed by the Court to be impleaded in the previous suit to fight the common cause of the villagers of Ukhrul. 9. The learned Subordinate Judge after going through the pleadings of the parties framed as many as 10 issues. On examination and appreciation of the witnesses adduced by the parties as well as upon hearing the respective Counsel of both the parties, by his order dated 29.02.1980 decreed the instant suit in favour of the Plaintiffs/Appellants holding that the judgment and decree passed in the previous suit was a nullity as the learned Sub-Judge had passed the same without any jurisdiction after the death of two Defendants i.e. Defendant No. 1, Mishivam Khullakpa and Defendant No. 3, M.K. Shimray in the previous suit and the said did abate due to non-substitution of the legal representatives of those Defendants to proceed in the case in the representative capacity. The suit was further decreed declaring that the Plaintiffs i.e. Appellants herein, were entitled to the reliefs claimed and Defendant No. 1 to 4, i.e. the Respondents in this appeal had no right or title over the suit land and also they had no right to eject the Plaintiffs from thereon. 10. The suit was further decreed declaring that the Plaintiffs i.e. Appellants herein, were entitled to the reliefs claimed and Defendant No. 1 to 4, i.e. the Respondents in this appeal had no right or title over the suit land and also they had no right to eject the Plaintiffs from thereon. 10. Feeling dissatisfied with the judgment and decree dated 29.2.1980, the Defendants/Respondents as Appellants preferred an appeal before this High Court which sent the appeal before the learned District Judge, Manipur West who in turn by order dated 4.11.95 made over the appeal to the Court of the Additional District Judge, Manipur East, Imphal and the said appeal was registered as Civil Appeal Case No. 20/94/5/95. 11. Before the learned Additional District Judge, the learned Counsel for the Appellant submitted two legal points i.e. (i) the previous suit was not abated and the instant suit was barred by res-judicata in view of the decree passed in the previous suit wherein the parties and issues were exactly same and similar as in the instant case and (ii) the instant suit was barred by time in terms of Articles 58 and 113 of the Limitation Act. On the other hand, learned Counsel for the Respondents contended that decree against the dead person was nullity and since the surviving Defendants were being sued in their individual capacity and not in representative capacity, the previous suit abated as a whole and further the instant suit was not barred by time. 12. On the basis of submissions advanced on behalf of the contesting parties above noticed, the appellate Court upon extensive hearing of the learned Counsel for the parties and on perusal of the materials available on record including the evidence of the witnesses, came to the conclusion that the previous suit did not abate due to the death of Defendant No. 1 because the surviving Defendants No. 2, 3 and 4 were not sued in their individual capacity. According to him, when Ext. A/19 by which the Court gave necessary permission under Order I, Rule 8, Code of civil Procedure, to sue the Defendant in representative capacity, We was nothing to show on record that Defendant Nos. 2, 3 and 4 were allowed to be sued in the previous suit in their individual capacity. According to him, when Ext. A/19 by which the Court gave necessary permission under Order I, Rule 8, Code of civil Procedure, to sue the Defendant in representative capacity, We was nothing to show on record that Defendant Nos. 2, 3 and 4 were allowed to be sued in the previous suit in their individual capacity. Further it was held that the instant suit was hit by principle of res judicata and also time barred under Article 58 read with Article 13 of the Limitation Act. On the basis of the above finding, the learned Additional Judge by his judgment and order dated 4.3.96 allowed the appeal setting aside the judgment and decree dated 29.2.80 passed in the instant suit by the learned Subordinate Judge No. 1 Manipur. Hence this Second Appeal. 13. I have carefully perused the impugned judgment and order and also meticulously inspected the materials available on record including the record related to the previous suit and judgment and decree passed therein. It appears that the previous suit was instituted by the Respondents as Plaintiffs in their representative capacity under Order I, Rule 8, Code of Civil Procedure against the Defendants/Appellants who were also sued in the representative capacity under Order I, Rule 8, Code of civil Procedure. In the previous suit, both the Plaintiffs belonging to Huining Village and Defendants belonging to Ukhrul Village, in their representative capacity of the village concerned, fought for common issue for declaration of right, title and interest over a suit land known as 'Samsai'. In the said suit, the Defendant No. 2, Sri T. Luikham, No. 3, M.K. Shimray and Defendant No. 4, S. Kanre were impleaded as party on being allowed by the learned Subordinate Judge by entertaining the application preferred by them for impleadment. It is seen that those Defendants belonged to the same village i.e. Ukhrul village. They were also having the common interest as of the Defendant No. 1 who was allowed to be sued in the representative capacity. It is seen that those Defendants belonged to the same village i.e. Ukhrul village. They were also having the common interest as of the Defendant No. 1 who was allowed to be sued in the representative capacity. Since in the entire suit, both the parties were allowed to sue and to be sued in the representative capacity, if one of the persons, being sued in the representative capacity dies, in my opinion, other surviving persons in the suit, having common interest and on being permitted to be impleaded as party or parties in the said suit, being of representative nature, have the right to sue or to be sued in their representative capacity and hence it is not necessary to seek fresh permission from the Court to sue or to be sued in representative capacity. 14. From the perusal of the contentions made in the plaint particularly in paragraphs 10 and 11 preferred by the Plaintiffs/Appellants in the instant suit, it appears that in the previous suit, the learned Subordinate Judge passed an order on 23.8.1960 for publication of notice in the local daily paper "Praja Tantra" inviting any person willing to join in the said suit, which was brought against the then Defendant No. 1, Mishivam Khullakpa of Ukhrul village in the representative capacity, on either side to appear on 3.11.60 and apply to the Court to be made a party and the said notice was published in the said paper on 3.9.60. Pursuant to such Notice, T. Luikham, M.K. Shimray and S. Kanrei applied to the Court for making them party on the side of Defendants in the previous suit in the representative capacity and the learned Subordinate Judge allowed the said application for impleadment of those persons as party Defendant and directed to amend the plaint and accordingly re-cast plaint was submitted impleading those persons as Defendant Nos. 2 to 4 respectively in the previous suit. That being the admitted position, it cannot be said that in the previous suit, said late Mishivam Khullakpa was the sole Defendant and on his death the suit did abate for non-impleadment of other persons. It can be unhesitatingly held that since in the previous suit, Defendant Nos. 2 to 4 respectively in the previous suit. That being the admitted position, it cannot be said that in the previous suit, said late Mishivam Khullakpa was the sole Defendant and on his death the suit did abate for non-impleadment of other persons. It can be unhesitatingly held that since in the previous suit, Defendant Nos. 2 to 4 were permitted to be impleaded only on making application to the Court pursuant to the notice ordered to be issued by the Court asking any person willing to join the said suit on either side as because the suit was brought by the Plaintiffs in the representative capacity against the Defendant No. 1 Mishivam Khullakpa of Ukhrul village in representative capacity, they appeared to have been permitted by the Court to be sued in the representative capacity in the previous suit. In that view of the matter, this Court is of the view that in the previous suit, the right to sue survived after the death of Defendant No. 1 who was not the sole Defendant, through other remaining Defendant i.e. Defendant Nos. 2 to 4. Hence substantial question of law so formulated is hereby answered accordingly. 15. Mr. Nilamani Singh, learned Sr. Counsel has submitted that the judgment and order dated 15.10.1969 in the previous suit was passed after the death of the Defendant No. 1, Mishivam Khullakpa therein and as such decree against a dead man is a nullity. More so, after the death of the said Defendant, no attempt was made by the Plaintiffs therein, i.e. Defendants/Respondents in this appeal, to substitute any other person in place of Defendant No. 1 to be sued in the representative capacity in the previous suit. Hence the previous did abate for non-substitution of Defendant No. 1. To substantiate his argument the learned Sr. Counsel has made reliance upon the judgments of the Apex Court, namely, (i) 1994 Sup (3) SCC 314 (Rajendra Prasad and Anr. v. Khirodhar Mahto and Ors.) and (ii) (2001) 5 SCC 570 (Amba Bai and Ors. v. Gopal and Ors.) 16. Hence the previous did abate for non-substitution of Defendant No. 1. To substantiate his argument the learned Sr. Counsel has made reliance upon the judgments of the Apex Court, namely, (i) 1994 Sup (3) SCC 314 (Rajendra Prasad and Anr. v. Khirodhar Mahto and Ors.) and (ii) (2001) 5 SCC 570 (Amba Bai and Ors. v. Gopal and Ors.) 16. In those referred cases, the Apex Court held that where during the pendency of the suit/appeal, the Plaintiff or the Appellant dies and his legal representative are not brought on record, the suit/appeal abates and the decree given by the trial Court or the appellate Court in favour of the Plaintiff or the Appellant as the case maybe, shall be held to be invalid. In view of the discussions and observations made herein above, I am constrained to hold that the law laid down in the above cited decision is not applicable at all to the present case. 17. For the foregoing reasons and discussions, this Court is of the view that there is no merit in the Second Appeal and accordingly the same stands dismissed. No Costs. 18. I have heard Mr. A. Nilamani Singh, the learned Sr. Counsel assisted by Mr. A. Bimol, the learned Counsel representing the Appellants and Mr. I Brojendra, the learned Counsel on behalf of the Respondents. Appeal dismissed