Judgment : 1. The above Second Appeal No.551 of 2010 and the companion Second Appeal No. 332 of 2010 arise out the same judgment & order dated 1st April, 2010 passed by the learned District Judge- 1, Palghar by which the Regular Civil Appeal No. 66 came to be allowed and judgment and decree passed by the learned Civil Judge, Junior Division, Palghar in Regular Civil Suit No. 46 of 1996 came to be set aside, and resultantly Regular Civil Suit No. 67 of 2004 filed by the Appellants herein came to be dismissed. 2. It is not necessary to burden this order with unnecessary facts. However, the facts necessary to be cited for adjudication of the above Appeal, in brief, can be stated thus: i. The Appellants above named are the original plaintiffs who had filed the suit being Regular Civil Suit No. 46 of 1996 seeking perpetual injunction against the Defendants i.e. the Respondents herein in respect of the suit properties which included land bearing City Survey Nos. 886, 894, 896, 807 (Pardi No.2 Pai) & and 898 (Pardi No. 147 Pai), and House No. 387 and House No. 384, more particularly described in Para-1 of the plaint. The Plaintiffs are claiming through one Adi Aadarji Tarapurwala, who was their father and that the said properties were in his name. It was the case of the plaintiffs that they were ZoroastrianParsis' and they apprehended that the Defendants, who are the brothers of their father, would dispossess them, they were, therefore, constrained to file the suit in question which was numbered as Regular Civil Suit No. 46 of 1996. ii. The Defendants filed their written statement and disputed the relationships of the Plaintiffs with the said Adi Adarji Tarapurwala. It was their case that the Plaintiffs have got prepared false documents and have fabricated the entries in the Grampanchayat record. It was their case that one Yashodabai who was working with the said Adi Adarji Tarapurwala and that the Plaintiffs are children of Yashodabai and one Arvind Patil. It was their case that the said Adi Adarji Tarapurwala was a Zoroastrian Parsi, whereas the Plaintiffs are from the Hindu Dubala community. iii. The parties went to trial. It was their case that one Yashodabai who was working with the said Adi Adarji Tarapurwala and that the Plaintiffs are children of Yashodabai and one Arvind Patil. It was their case that the said Adi Adarji Tarapurwala was a Zoroastrian Parsi, whereas the Plaintiffs are from the Hindu Dubala community. iii. The parties went to trial. Suffice it to note that on the basis of the material on record, the suit was partly decreed and the trial Court granted injunction against the Defendants only insofar as the House properties being House No. 387 and House No. 384 were concerned. The claim of the Plaintiffs qua the other suit properties came to be rejected. iv. In the context of the issue which arises in the above Second Appeal, it would be relevant to note that during the pendency of the suit, the original Defendant No.1 Dinsha Adarji Tarapurwala died. The Plaintiffs, therefore, moved an application for bringing his heirs on record. The said application filed by the Plaintiffs came to be rejected by the trial Court observing that since it was a suit for injunction, the cause of action against the Defendant No.1, on his death, did not survive. The Plaintiffs were, therefore, not permitted to bring the heirs of the Defendant No.1 on record. v. Aggrieved by the part decreeing of the suit, the Plaintiffs as well as the Defendants filed the Appeals before the lower Appellate Court. Insofar as the Plaintiffs are concerned, their Appeal was numbered as Regular Civil Appeal No. 67 of 2004 and insofar as the Defendants are concerned, their Appeal was numbered as Regular Civil Appeal No.66 of 2004. The said Appeals were heard together by the learned District Judge-1, Palghar and as indicated above, by the impugned judgment & order dated 1st April, 2010, the Appeal filed by the Defendants came to be allowed and decreeing of the suit was set aside; the Appeal filed by the Plaintiffs being Regular Civil Appeal No. 67 of 2004 came to be dismissed. The above two Second Appeals therefore arise out of the judgment and order passed in the said two Regular Civil Appeals by the Lower Appellate Court. 3. What is relevant to note is that the Defendant No.2 Sawaksh Adarji Tarapurwala had expired during the pendency of the proceedings before the lower Appellate court. The above two Second Appeals therefore arise out of the judgment and order passed in the said two Regular Civil Appeals by the Lower Appellate Court. 3. What is relevant to note is that the Defendant No.2 Sawaksh Adarji Tarapurwala had expired during the pendency of the proceedings before the lower Appellate court. An application had been moved for bringing his heirs on record; the said application was moved by one Marzaban Dhanjishaw Palshetia who claimed that he had a Will in his favour from the said Defendant No.2. The application was founded on the said will, a Xerox copy of which, it seems, was produced before the lower Appellate Court. The said application filed by Marzaban Dhanjishaw Palshetia was opposed by the Plaintiffs by filing their objections which was numbered as 414 alongwith Exh.12. The lower Appellate Court, without following the mandate of Order 22 Rule 5 of the Civil Procedure Code, allowed the application of the said Marzaban Dhanjishaw Palshetia and resultantly, the said Marzaban Dhanjishaw Palshetia was brought on record in substitution of the original Defendant No.2. 4. In the context of the above Second Appeal, the decree passed by the lower Appellate Court is challenged on the ground that the course of action followed by lower Appellate Court whilst allowing the application filed by the said Marzaban Dhanjishaw Palshetia was in breach of the procedure prescribed. 5. The substantial question of law, therefore, which arises for consideration in the above Second Appeal is as under: Whether the Lower Appellate Court could have allowed the Application filed by the said Marzaban Dhanjishaw Palshetia without following the mandate of Order 22 Rule 5 of the Civil Procedure Code? 6. In the context of the issue which arises for consideration, Order 22 Rule 5 of the Code would be gainfully referred to, and is reproduced hereunder: ORDER 22 – DEATH, MARIAGE AND INSOLVENCY OF PARTIES. Rule 5. 6. In the context of the issue which arises for consideration, Order 22 Rule 5 of the Code would be gainfully referred to, and is reproduced hereunder: ORDER 22 – DEATH, MARIAGE AND INSOLVENCY OF PARTIES. Rule 5. Determination of question as to legal representative._ Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court: [Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question and to return the records together with evidence, if any, recorded at such trial, its findings and reasons therefore, and the Appellate court may take the same into consideration in determining the question]. The proviso to the said Rule 5, as can be seen, postulates that where a question arises before an Appellate Court as to who is the legal representative, that Court may, before determining the question, direct any subordinate Court to try the question and to return the records together with evidence, if any, recorded at such trial, its findings and reasons therefore, and the Appellate court may take the same into consideration in determining the question. Hence, before allowing an application for substitution of a party by heirs, it is mandated that where an objection is raised as to whether any person is or is not a legal representative, it is the duty of the Court to determine the issue in terms of the Proviso to said Rule 5. 7. The learned counsel for the Appellants relies upon the judgment of the Apex Court in the matter JaladiSuguna (Deceased) through Lrs. Vs. Satya Sai Central Trust & others reported in 2008 (8) Supreme Court Cases 521. Paragraphs 15 and 16 of the said report are material and are reproduced hereunder: “15. Filing an application to bring the legal representatives on record, does not amount to bring the legal representatives on record. When an LR application is filed, the court should consider it and decide whether the persons named therein as the legal representatives, should be brought on record to represent the estate of the deceased. Until such decision by the court, the persons claiming to be the legal representatives have no right to represent the estate of the deceased, nor prosecute or defend the case. Until such decision by the court, the persons claiming to be the legal representatives have no right to represent the estate of the deceased, nor prosecute or defend the case. If there is a dispute as to who is the legal representative, a decision should be rendered on such dispute. Only when the question of legal representative is determined by the court and such legal representative is brought on record, can it be said that the estate of the deceased is represented. The determination as to who is the legal representative under Order 22 Rule 5 will of course be for the limited purpose of representation of the estate of the deceased, for adjudication of that case. Such determination for such limited purpose will not confer on the person held to be the legal representative, any right to the legal property which is the subject-matter of the suit, vis-a-vis other rival claimants to the estate of the deceased. 16. The provisions of Rules 4 and 5 of Order 22 are mandatory. When a respondent in an appeal dies, the court cannot simply say that it will hear all rival claimants to the estate of the deceased respondent and proceed to dispose of the appeal. Nor can it implead all persons claiming to be legal representatives, as parties to the appeal without deciding who will represent the estate of the deceased, and proceed to hear the appeal on merits. The court cannot also postpone the decision as to who is the legal representative of the deceased respondent, for being decided along with the appeal on merits. The Code clearly provides that where a question arises as to whether any person is or is not the legal representative of a deceased respondent, such question shall be determined by the court. The Code also provides that where one of the respondent dies and the right to sue does not survive against the surviving respondents, the court shall, on an application made in that behalf, cause the legal representatives of the deceased respondent to be made parties, and then proceed with the case. Though Rule 5 does not specifically provide that determination of legal representative should precede the hearing of the appeal on merits, Rule 4 read with Rule 11 makes it clear that the appeal can be heard only after the legal representatives are brought on record.” 8. Though Rule 5 does not specifically provide that determination of legal representative should precede the hearing of the appeal on merits, Rule 4 read with Rule 11 makes it clear that the appeal can be heard only after the legal representatives are brought on record.” 8. In the instant case, it is an undisputed position that the Plaintiffs had questioned the locus of the Applicant Marzaban Dhanjishaw Palshetia to file an application for substituting himself in place of the Defendant No.2 on his death as his legal heir. It was therefore necessary for the lower Appellate Court to follow the procedure prescribed in the said Rule 5. However, it is an undisputed position that the said procedure was not followed by the lower Appellate Court and the application filed by the said Marzaban Dhanjishaw Palshetia, which as indicated above was founded on a Xerox copy of the purported Will of the Defendant no.2, was straightaway allowed. In my view, therefore, the impugned judgment and order dated 1st April, 2010 would have to be set aside and the Appeals in question would have to be remanded back to the lower Appellate Court for a de-novo consideration. The lower Appellate Court, in view of the objection Exh.414 along with Exh.12 filed by the Plaintiffs, would have to first adjudicate upon the objection as regards the locus of the said Marzaban Dhanjishaw Palshetia to file an application for being impleaded as legal representative of the original Defendant No.2. The contentions of the parties in that respect are explicitly kept open for being urged before the lower Appellate Court or the Court to which the lower Appellate Court may remit the matter to. The lower Appellate Court would, only after determining the said issue, proceed to adjudicate upon the merits of the Appeals. The question of law, as framed above, therefore, stands answered accordingly. 9. The lower Appellate Court, on remand, to decide the matter within six months of the receipt of this order. The learned counsel appearing for the parties’ state that they would Appear before the lower Appellate Court on 14th June, 2012. 10. Since the impugned judgment and order of the lower Appellate Court is set aside, the decree passed by the lower Appellate Court would be in operation till the Appeals are decided by the lower Appellate Court in terms of this order. 11. 10. Since the impugned judgment and order of the lower Appellate Court is set aside, the decree passed by the lower Appellate Court would be in operation till the Appeals are decided by the lower Appellate Court in terms of this order. 11. The above Second Appeals are allowed to the aforesaid extent with parties to bear their respective costs. 12. In view of the disposal of the above Second Appeals, Civil Application No.644 of 2010 does not survive and the same is accordingly disposed of as such.