JUDGMENT Honble A.N. Varma, J.—The petitioner, along with one Hari Singh instituted a suit, being suit No. 172 of 1974, against the opposite parties No. 4 to 17 i.e. defendants, for possession after ejectment of the said defendants from over the property in question. It was further prayed that the defendants be directed not to demolish the construction raised on the land in dispute marked as Letters A, B, C and D. 2. The case set up by the plaintiffs was that the land in question was owned and possessed by one Liaqat Ali Khan; who migrated to Pakistan and the property was declared as evacuee property. By virtue of sale-deed dated 13-2-1968 executed by Union of India in favour of petitioner as well as Hari Singh, they became owner having acquired title as aforesaid. Since the defendants were in illegal occupation of the property from the time of its erstwhile owner and the plaintiffs having acquired the title to the same instituted a suit for ejectment. Some of the defendants filed their statements and refuted the claim of the plaintiffs. One of the plaintiffs i.e. Hari Singh died on 22-10-1981. A Will was said to have been executed by the deceased on 21-6-1981 in favour of the petitioner. The petitioner on 17-8-1982 made an application under Order 22 Rules 2 and 3 of the Code of Civil Procedure alleging therein that as one of the plaintiff has died and he being the Co-sharer had a right to proceed with the Suit. It was further alleged that even otherwise there being a Will in his favour he was legal heir of the deceased. The opposite parties filed objections alleging therein that as application for substitution had not been filed within time prescribed and the Will said to have been executed in favour of petitioner being fictitious and invalid the suit abated. 3. The trial Court vide its judgment and order dated 27-5-1983 allowed the objections preferred by the opposite parties and abated the suit in its entirety. Being aggrieved, petitioner filed an appeal before the District Judge. The Additional District and Sessions Judge, Court No. (7) Muzaffar Nagar, vide its judgment and order dated 22-3-2003, dismissed the appeal. It is against the said orders passed by the learned Courts below that the petitioner approached this Court through the present writ petition. 4. Being aggrieved, petitioner filed an appeal before the District Judge. The Additional District and Sessions Judge, Court No. (7) Muzaffar Nagar, vide its judgment and order dated 22-3-2003, dismissed the appeal. It is against the said orders passed by the learned Courts below that the petitioner approached this Court through the present writ petition. 4. I have heard Shri B.D. Madhyan, learned Senior Advocate, for the petitioner as well as Shri A.K. Srivastava, learned Counsel for the opposite parties. 5. Shri Madhyan submitted that the judgment and orders passed by the learned Courts below suffer from manifest error of law inasmuch as the trial Court fell in grave error in abating the suit. As per his submission the suit having been filed by both petitioner as well as Hari Singh as co-owners of the property in question and one of the plaintiff having died, the right to sue survives upon the remaining plaintiff. He further submitted that Hari Singh having executed a Will on 21-6-1981 in favour of the petitioner by virtue of which he succeeded to the share of the deceased and there being no other application for substitution, therefore, the right to sue survived upon the petitioner. He further submitted that the learned Courts below had absolutely no jurisdiction to go into the question of validity of the Will as the same was subject matter to be decided in the course of the proceedings and not while prayer for abatement was being dealt with. On the said premise, according to him, judgment and orders passed by both the Courts below, thus deserve to be set aside. 6. Shri Srivastava, in opposition argued that after the death of Hari Singh, there was no cause of action left with the petitioner as both being Co-owners and the property having not been partitioned it could not be defined as to over which portion of the plots in question decree of possession was to be passed and against which of the defendants relief could be given. He further submitted that one of the plaintiffs having died and there being no application for substitution within time prescribed, the entire suit abates and the trial Court as well as appellate Court have rightly come to the conclusion to the same effect. 7. In support of his case, he placed reliance upon AIR 1999 SC 1077 , Badni (dead) by LRs. 7. In support of his case, he placed reliance upon AIR 1999 SC 1077 , Badni (dead) by LRs. and others v. Siri Chand (dead) by LRs. and others; AIR 1983 SC 676 , Madan Naik (dead by LRs.) and others v. Mst. Hansubala Devi and others, 2000(41) Supreme Court 113, Ragho Singh v. Mohan Singh and others; JT 1997(8) SC 189, P.K. Ramachandran v. State of Kerala and another. 8.From the perusal of the allegations made in the plaint it is apparent that the property in question was jointly purchased by the petitioner as well as Hari Singh(deceased) by virtue of the sale-deed dated 13-2-1968 executed by the Union of India, same being an evacuee property. Under the sale-deed the said purchasers became absolute owners and on the basis of the aforesaid title dispossession of the defendants was sought as they were only licensees. 9. Order 22 of the Code of Civil Procedure lays down the procedure in the event one or several plaintiffs or one defendant or defendants die. Sub-rule (1) of Order 22 prescribes that if right to sue survives, the death of plaintiff or defendant shall not cause the suit to abate. Sub-rule (2) of Order 22 contemplates that where there are more plaintiffs or defendants than one and any one of them dies and right to sue survives on any one of the plaintiffs or the defendants, the Court shall cause an entry to be made to the effect and the suit shall proceed at the instance of the surviving plaintiffs against surviving defendants. Sub-rule (3) of Order 22 postulates that where one of the two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, the Court on application to be made in that behalf shall cause the legal representatives of deceased-plaintiff to be made party and the suit shall proceed. If such an application is not preferred within time prescribed the suit shall abate so far as the deceased-plaintiff is concerned. 10. If such an application is not preferred within time prescribed the suit shall abate so far as the deceased-plaintiff is concerned. 10. Upon the death of one of the plaintiff i.e. Hari Singh, application was preferred by the petitioner with a prayer that since he was one of the Co-owner and also Will having been executed in his favour on 21-6-1981 by the deceased in respect of his share, therefore, he had right to proceed with the suit in his own rights as well as on the basis of the said Will, by virtue of which he was also his legal representative. It is noteworthy that none of the heirs of Hari Singh came forward with an application for their substitution. 11. Thus, it is clearly decipherable that both the petitioner as well as Hari Singh (deceased) had a cause of action against the defendants to the suit. Subsequently, upon death of Hari Singh, the right obviously devolved upon the petitioner by virtue of Will dated 21-6-1981 and the same having not been challenged in appropriate proceedings, he became absolute owner of the property and, therefore, right to sue survived upon him. 12. The trial Court instead of dwelling upon the Provisions of Order 22 Rule 1, 2 and 3 as to the effect on the suit in the event one of the Co-plaintiffs dies, entered into the validity of the Will and abated the suit in its entirety. Apart from distinct right which the petitioner had by virtue of the sale-deed dated 13-2-1968, to the extent of his share, he also inherited the rights of Hari Singh (deceased). Even otherwise the application preferred by the petitioner having clearly indicated that after the death of one of the Co-plaintiff the right to sue survived upon him, the Courts below in right perspective ought to have made an entry on the record that right to sue survived with the petitioner. In proceedings for determination as to whether or not the suit abates, it was not proper for the trial Court to have gone into the question of genuineness of the Will, which, in fact, was subject matter to have been dealt with while deciding the suit, or the validity of which could have been assailed in appropriate proceedings, as the case may be. Learned appellate Court also fell in error in dismissing the appeal preferred by the petitioner against the order passed by the trial Court. 13. In Badni (supra) six different suits were filed against which appeal arose and upon death of one the appellants no application for substitution having been preferred it was observed that all the appeals would abate or else there would be conflicting decrees in the remaining appeals if the same are allowed to continue. This case does not apply in so far as the case at hand is concerned as there is only one suit and one of the plaintiffs died, the right to sue survived upon the remaining plaintiff. 14. In Madan Naik (supra) the Apex Court held that the provision of Order 22 Rule 4 makes it obligatory to seek substitution of the heirs and legal representatives of deceased if right to sue survives. It also observed that for abatement of a suit no specific order is required in the event the application for substitution is not made. The said proposition is not disputed in the instant case, in view of the fact that right to sue survived, entire suit could not abate. 15. In Ragho Singh (supra) the appellate authority had condoned the delay in filing the appeal in the absence of an application under Section 5 of the Limitation Act. Such is not the case in the present case, therefore, the said proposition also does not apply. 16. In P. K. Ramachandran (supra) the Apex Court observed that Law of Limitation may harshly affect a particular party but it has to be applied with all its rigour. The said proposition is not also in dispute. 17. Learned Courts below on the face of it have not appreciated and applied the Provisions of Order 22 Code of Civil Procedure in its right perspective. The Court below thus have fallen in grave errors in abating the suit in its entirety. 18. In the circumstances, the judgment and orders impugned in the writ petition can not be allowed to be sustained. 19. In view of what has been said hereinabove, the writ petition deserves to be allowed. The writ petition, thus, is allowed. The judgment and orders dated 22-3-2003 as well as order dated 27-5-1983 passed by the learned Courts below are hereby, set aside. 19. In view of what has been said hereinabove, the writ petition deserves to be allowed. The writ petition, thus, is allowed. The judgment and orders dated 22-3-2003 as well as order dated 27-5-1983 passed by the learned Courts below are hereby, set aside. The trial Court shall restore the suit to its original number and decide the same expeditiously say within a period of six months. 20. No order as to costs. ————