JUDGMENT S.N. Aggarwal, J. 1. This second appeal under Section 100 of the Code of Civil Procedure, 1908 was filed by Appellant Notamal aggrieved by the judgment and decree of the First Appellate Court dated 8th May, 1998 in Civil Appeal No. 45A/98 whereby the order of the Trial Court dated 24th February, 1998 in Civil Suit No. 119A/96 directing return of the plaint under Order VII Rule 10 Code of Civil Procedure was set aside and the suit was dismissed on merits. 2. This appeal was admitted for final hearing by this Court vide its order dated 07th December,1998 on the following substantial question of law: Whether the judgment and decree passed by the lower appellate court is vitiated as appeal was preferred under Order 43, Rule 1 Code of Civil Procedure, against order of return of plaint for proper presentation ? 3. Briefly stated the facts of the case giving rise to this second appeal are that the Appellant had filed a suit for mandatory injunction and possession against his son, Respondent herein. The foundation of the suit was the claim of the Appellant that his son was a licensee in the suit premises and as the license was revoked he was entitled to decree of possession against him. Said suit filed by the Appellant against the Respondent was ordered to be returned under Order VII Rule 10 Code of Civil Procedure for want of pecuniary jurisdiction of the Court in which the suit was filed. The Trial Court was of the view that the value of the suit property was worth Rs. four lacs and Civil Judge Class I had no pecuniary jurisdiction to deal with the said suit. The Appellant aggrieved by the said order of the Trial Court preferred an appeal under Order XLIII Rule 1 Code of Civil Procedure being Civil Appeal No. 45A/98 which was disposed of by the First Appellate Court vide its impugned judgment and decree dated 8th May, 1998. The First Appellate Court on facts found that the Trial Court had pecuniary jurisdiction to entertain the suit and for that reason did not agree with its order directing return of plaint for want of pecuniary jurisdiction. However, the First Appellate Court instead of directing the Trial Court to decide the suit on merits, took upon itself to deal with the merits of the case and ordered dismissal of the suit. However, the First Appellate Court instead of directing the Trial Court to decide the suit on merits, took upon itself to deal with the merits of the case and ordered dismissal of the suit. Appellant aggrieved by this judgment and decree of the First Appellate Court has filed the present second appeal under Section of Code of Civil Procedure, 1908. 4. The sole Appellant Notamal died during the pendency of the present appeal on 22nd August, 1999 and his other son Asandas was substituted as his legal heir in the present appeal vide order dated 15th January, 1995 and his substitution was on the basis of a will of the Appellant dated 7th March,1995 in his favour. 5. Since the sole Appellant had died during the pendency of the present appeal and as he had filed the civil suit for declaration and possession against his son Mangaram on the basis that he was a licensee in the suit premises which licensee stood revoked, the substratum of the subject matter of the suit disappears upon his death. In case, the Appellant had made a will dated 7th March, 1995 in favour of his son Asandas, then the beneficiary of the said will can either file a substantive suit for possession on the basis of rights accrued to him through will of his father dated 7th March, 1995 or can also file proceedings for obtaining Probate/Letter of Administration in respect of the will of his deceased father. However, he cannot be allowed to continue with the suit for declaration and possession filed by his late father basing his claim that the Defendant in the suit was a licensee and was liable to hand over possession after revocation of the license. This Court is of the view that even if the Respondent being the Defendant in the suit is found to be a licensee in respect of the suit premises, still the Appellant's son Asandas shall not be entitled to a decree of possession in his favour unless he first proves the genuineness of the will dated 7th March, 1995 relied upon by him as a ground for his substitution as legal heir of the deceased Appellant. 6. 6. In view of the foregoing reasons and having regard to the death of the sole Appellant during the pendency of the present appeal, this Court is of the view that the present appeal is rendered in fructuous and is disposed of accordingly reserving liberty for Appellant's son Asandas to take such steps for enforcement of his rights in the suit property as may be advised in that regard. Needless to mention that the observations and findings contained in the impugned judgment and decree of the First Appellate Court shall not come in the way of Appellant's son Asandas in the subsequent proceedings that he may take for enforcement of his rights in the suit property which have to be decided as per law.