JUDGMENT A.S. NAIDU, J. — The judgment and decree dated 16.1.1996 and 31.1.1996 passed by learned First Additional District Judge, Puri in T.A. No. 2/12 of 89/87 reversing the judgment and decree dated 12.12.1986 and 2.1.1987 respectively passed by the then Subordinate Judge, Puri in Original Suit No. 118 of 1981-I, is assailed in this Second Appeal. 2. In consonance with the mandates of Section 100 of the Code of Civil Procedure, the following substantial questions of law were framed at the time of admission of the appeal. (a) Whether Title Appeal No. 2/12 of 89/87 stood abated in toto for non-substitution of the legal representatives of Mohan Pradhan, the respondent no.1 in Lower Appellate Court who died during the pendency of T.A. leaving behind his widow 3 sons and one daughter ? (b) Whether the presumption of compelled partition applies where the parties are in separate possession for long and are exercising acts of ownership and there are mutual transaction ? (c) Whether the findings that Banamali and Tara Bewa pur¬chased the suit properties having equal share in the name of their respective minor children is tenable in view of the provi¬sions of Benami Transactions (Prohibition) Act in as much as the Regd. Sale deed stands in the name of Uchhaba, Kunja, Mohan, Rajan and Madan, who are tenants in common having equal shares in the suit property ? 3. Bereft of unnecessary details, the short facts, which would be necessary for appreciating the inter-se disputes are stated here-in-below: Madan Pradhan, the predecessor of the present respondent no. 1(a) and 1(b) as sole plaintiff filed Original Suit No. 118 of 1981 in the Court of Subordinate Judge, Puri, inter alia, praying for partition of the properties more fully described in the suit schedule. According to said Madan Pradhan, the suit schedule ‘A’ lands of the plaint were homestead lands purchased by registered sale deed in the year 1971 in the name of Rajan, Mohan, Kunja and Uchhaba and the minor sons of Banamali and Madan (plaintiff), who were minor sons of Nidhi and were represented through their father and mother guardian respectively from one Nitei Pradhan, Banamali and Nidhi who were sons of Raghu Pradhan. After pur¬chase, it is averred, Bansi, defendant no.2 was born to Banamali, on the other hand, Kunja and Uchhaba died leaving behind no legal heirs. After pur¬chase, it is averred, Bansi, defendant no.2 was born to Banamali, on the other hand, Kunja and Uchhaba died leaving behind no legal heirs. While the matter stood thus, Banamali and Tara also died leaving behind their respective heirs. Rajan died leaving behind his widow Sundari (defendant no.3) and his sons and daughters, defendant nos. 4 to 11. For the sake of brevity and better under¬standing, the genealogy of the parties is given here-in-below. Raghu Banamali Nidhi Jalandar Horadei Ranga Dei Suranga Dei Late Rajan Mohan Bansi Late Kunja Late Uchhab (D-1) (D-2) Madhab (D-10, A-10) W-Rekha @ Niasi Dei (D-10, A-11) Ganga Dibakar Prabhakar [D-2(Ka)] [D-2 (Kha)] [D-2 (Ga)] (A-1) (A-2) (A-3) Mahendra Kunja @ Upendra Kamala Sobani Rani Dana (D-4) (D-5) (D-6) (D-7) (D-8) (D-9) (A-5) (A-6) (A-7) (A-8) (A-9) 4. The plaintiff and the defendants were enjoying the joint family properties together when disputes cropped up among themselves relating to possession of the lands. Consequently, a suit for partition was filed by Madan, inter alia, praying to pass a preliminary decree for partition of the suit properties and for declaring that the plaintiff has 1/2 share in the suit properties and the other defendants together have 1/2 share in the suit properties and to grant other consequential reliefs. 5. The defendants in their written statement repudiated the claim of the plaintiff and took the stand that the plaintiff, was entitled to only 1/5th share while the defendants have got 4/5th share in the suit property. According to them, the suit property was purchased in the name of minor sons of Banamali, i.e., Rajan, Bansi, Kunja, Uchhaba and the plaintiff, through their father and mother guardian respectively. The consideration money was paid out of the contributions made in equal shares and as such, the defendants have got interest of 1/5th share each on the property. After purchase, defendant no.2 was born to Banama¬li, Kunja and Uchhaba, on the other hand, died leaving no heirs. So, the interest of Kunja and Uchhaba devolved on Rajan, Mohan and Bansi and thereby they have got 4/5th share while the plaintiff has got only 1/5th share in the suit property. 6. On the basis of the pleadings, the trial Court framed as many as six issues. To substantiate the case, respective parties have adduced both oral and documentary evidence. 6. On the basis of the pleadings, the trial Court framed as many as six issues. To substantiate the case, respective parties have adduced both oral and documentary evidence. After analyzing the evidence, the trial Court allotted 1/4th share to the plaintiff and 1/4th share to defendant nos. 1 and 2 and 1/4th share to defendant nos. 3 to 11, who are sons and daughter of Late Rajan born through Sundari, defendant no.3. Being aggrieved by the said preliminary decree, plaintiff filed Title Appeal No. 2/12 of 1989/87 which was heard by learned 1st Additional Dis¬trict Judge, Puri. The judgment was assailed mainly on the ground that the trial Court had lost sight of the fact that the suit land was purchased by Banamali and Tara by paying equal share of the consideration money at the time when the plaintiff and the sons of Banamali were minors and had no source of income of their own. The trial Court after holding that the share in the proper¬ties of Nidhi devolved on Madan, the plaintiff and the shares of the properties of Banamali devolved on Rajan, Kunja, Bansi and Uchhaba. After arriving at such a conclusion, it was contended that the trial Court erred in not holding that the plaintiff was entitled to 1/2 share in the property. In other words, the conclusions arrived at by the trial Court according to the plain¬tiff-appellant were inconsistent with the discussions made and the findings arrived at. To substantiate such contention, it was argued that since the plaintiff was in possession of 1/2 share, the suit should have been decreed in respect of the properties held by the plaintiff and the other half share should have been allotted to the defendants. 7. The submissions made by the plaintiff-appellant were repudiated by the respondents before the appellate Court. According to the respondents, the Court below has correctly appreciated the evidence and the conclusions arrived at being just and proper and in accordance with the evidence adduced, needs no interference. 8. The appellate Court after giving a conscious thought to the arguments advanced and after going through the evidence both oral and documentary and after considering the submissions made held that the suit properties were purchased in the name of the plaintiff and defendant no.1, the late husband of defendant no.3, Kunja and Uchhaba when they were minor through their father and mother guardian respectively. The definite finding of the trial Court being that the shares of Nidhi would devolve upon the plaintiff and the shares of Banamali would devolve upon Rajan, Madan, Kunja, Bansi and other defendants belonging to the branch of Rajan and Kunja and Uchhaba having died leaving no legal heirs, their interest should have been divided between Rajan, Madan and Bansi. The trial Court thus committed an error by allotting 1/4th share to the plaintiff and 3/4th share to defend¬ant nos. 1 and 2 and 1/4th share to defendant nos. 3 to 11 each. It further concluded that the allotment of shares in such manner cannot be held to be justified since the suit property was pur¬chased by the father and mother guardian of defendants and plaintiff respectively. Consequently, the judgment and decree was modified and it was declared that the plaintiff-appellant has 1/2 share over the suit property and the interest of the defendants 1 and 2 each has 1/6th and the interest of defendants 3 to 11 was 1/6th. The said judgment and decree is assailed in this Second Appeal. 9. In course of hearing though several contentions were raised, this Court finds that this appeal can be disposed of only on a single point. Perusal of the records reveal that respondent no.1, Madan Pradhan died on 9.11.1993, i.e. during pendency of the Title Appeal. This fact was not brought to the notice of the lower appellate Court and the appeal was heard on behalf of a dead person and disposed of by judgment and decree dated 16.1.1996. The Second Appeal was filed impleading Madan as the sole respondent. Thereafter, a petition was filed for substitu¬tion and the same being allowed, the legal heirs of Madan were substituted. It appears, Misc. Case No. 682 of 2002 has been filed before this Court by defendants-appellants taking the stand that defendant no.9, who was impleaded as respondent no.9 has died during pendency of the Title Appeal and he was also not substituted. The admitted position, as it appears from the re¬cords, is that the sole plaintiff-appellant-respondent, Madan Pradhan expired on 9.11.1993 and defendant no.9 had also expired on 20.4.1992. Both the deaths occurred during pendency of the appeal, as the appeal was disposed of on 16.1.1996. The admitted position, as it appears from the re¬cords, is that the sole plaintiff-appellant-respondent, Madan Pradhan expired on 9.11.1993 and defendant no.9 had also expired on 20.4.1992. Both the deaths occurred during pendency of the appeal, as the appeal was disposed of on 16.1.1996. Order 22, Rule 2 of C.P.C. stipulates that where there are more plaintiffs or defendants, then one and any one of them dies, the right to sue survives to the surviving plaintiffs or plaintiff along or against surviving defendant or defendants alone. The Court shall cause an enquiry to that effect to be made on the record and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs or against the surviving defendant or defendants. In the case in hand, however, the sole appellant had died and the said fact was not brought to the notice of the lower appellate Court. The appeal was allowed to proceed and the judgment was pronounced in favour of a dead person. Once the sole appellant had died and the legal heirs were not substituted, the appeal automatically stood abated and the judgment passed in favour of a dead person becomes a nullity in the eye of law. Mr. Panda, learned counsel for the respondent took the stand that the Code of Civil Procedure was designed to facilitate disposal of dis¬putes and as such, the judgment passed by the lower appellate Court should not be interfered with. But then, such plea cannot be accepted in the case in hand. Admittedly, the sole appellant died during pendency of the appeal and the said fact was not brought to the notice of the lower appellate Court. Neither any petition was filed under Order 22 C.P.C. for substitution of the legal heirs within the stipulated period nor any petition was filed under Order 1, Rule 10, C.P.C. at any subsequent stage. In the case in hand, the decree has been passed where the sole appellant had died much before the commencement of hearing of the appeal. It is no more res integra that any judgment and decree passed in favour of or against a dead person is a nullity in the eye of law. In the case in hand, apart from original appellant no.1, respondent no.9 had also died during pendency of the ap¬peal. No steps for substitution were taken though the legal heirs are surviving. 10. In the case in hand, apart from original appellant no.1, respondent no.9 had also died during pendency of the ap¬peal. No steps for substitution were taken though the legal heirs are surviving. 10. In view of the discussions made above, this Court has no hesitation to hold that Title Appeal No. 2/12 of 89/87 stood abated in toto for non-substitution of the legal representatives of Mohan Pradhan, the respondent no.1 in Lower appellate Court who died during the pendency of T.A. leaving behind his widow, 3 sons and one daughter and thus, the judgment and decree passed by the lower appellate Court being a nullity in the eye of law, cannot be sustained. The Second Appeal is accordingly allowed. Appeal allowed.