ORDER 1. The appellants have filed this second appeal under section 100 of CPC against the judgment and decree dated 13.3.2006 passed in Civil Appeal No.184-A/05 by learned Fourth Additional District Judge (Fast Track), Shivpuri (MP) setting aside the judgment dated 11.8.2005 passed in Civil Suit No.181/04 by learned First Civil Judge Class-II and decreeing the suit filed by the plaintiff. 2. Brief facts of the case are that respondents No. 10 Gaur Ali, respondent No. 11 Kamar Ali and Mst. Sugra W/o. Mehar Ali and Saukin Ali S/o. Mehar Ali filed the suit for declaration and partition on the grounds that agricultural land bearing survey No. 579 to 582 and 587 to 592 total area 4 bighas and 3 biswas was owned by Mehar Ali and Roshan Ali having half – half share and accordingly, they remained in joint possession over the land in dispute. Mehar Ali died in the month of August, 1971. Plaintiffs are the legal heirs of Mehar Ali and are in possession over the agricultural land as Bhumi Swami and in the revenue papers, the name of the plaintiffs are recorded as half Bhumi Swami after mutation. The plaintiffs sold half share of the land bearing old survey No. 422 and 424, new survey No. 587 and 589 vide registered sale deed to Shanti Bai and Shafi Ulla Khan (respondents No. 4 and 5 herein) and purchaser became co-owner of the land. Roshan Ali, father of the defednats, challenged the sale deed of Shanti Bai and Shafi Ulla Khan by filing suit bearing No. 2-A/1973 and in this suit, the sale deed was declared as null and void vide judgment and decree dated 6.8.1976. The plaintiffs filed appeal against the aforesaid judgment and the appeal was allowed and the judgment of the trial Court was set aside vide judgment and decree dated 13.3.1978 and the sale deed was found valid and the judgment passed is binding on the parties and defendants No. 7 and 8- Smt. Shanti Bai and Shafi Ulla Khan are made proforma party. The defendants are disputing the title of the plaintiffs and interfering in using of the land, therefore, plaintiffs constrained to file suit for declaration of title and partition. 3. The defendants / appellants herein filed their written statement denying the plaint allegations on the following grounds :- (i). The defendants are disputing the title of the plaintiffs and interfering in using of the land, therefore, plaintiffs constrained to file suit for declaration of title and partition. 3. The defendants / appellants herein filed their written statement denying the plaint allegations on the following grounds :- (i). When Mehar Ali, father of the plaintiffs, died, he was having no title and was not in possession over the disputed land. (ii). The plaintiffs with the collusion of revenue employees illegally mutated their names and over the land, such mutation did not confer the right of plaintiffs. The plaintiffs neither remained in possession nor cultivated the land. (iii). When plaintiffs came to know that half share of the land from survey No. 422 and 424 has been sold to Shanti Bai and Shafi Ulla Khan but actually this purchaser never came in possession over the land. The father of the defendants – Roshan Ali was in exclusive possession as Bhumi Swami and after his death, defendants filed suit challenging the sale deed on the ground that this land is Kabristan and, therefore, could not be sold. The suit was decreed and sale deed was set-aside but the learned appellate Court holding that the land is not of public Kabristan allowed the appeal. The controversy in that suit was only whether the land is of Kabristan or not ? And did not affect the right and title of the defendants as no title of the plaintiffs has been declared in that suit. (iv) In additional plea, it has been pleaded that Roshan Ali and Mehar Ali were brother and were co-owner of the land situated at A-B road, Shivpuri which is disputed land and the plot situated at Motibaba Road, Shivpuri, bearing survey No. 57/1 area 4 bighas and 5 biswas. Both brothers before the Panchayat agreed and settled that total disputed land will remain in the share of Roshan Ali while plot situated at Motibaba road of Survey No. 57/1 will remain in share of Mehar Ali and both brothers executed written document on 20.12.1959. Roshan Ali is in possession over the disputed land situated at Kent Shivpuri as absolute owner and plot situated at Motibaba Road remained with Mehar Ali as absolute owner. (v). Roshan Ali is in possession over the disputed land situated at Kent Shivpuri as absolute owner and plot situated at Motibaba Road remained with Mehar Ali as absolute owner. (v). After the death of Roshan Ali, defendants as legal heirs are absolute owner and in possession over the disputed land, now plaintiffs are stopped saying otherwise in this regard. (vi) The defendants are in possession as owner since 20.12.1959 over the disputed land, therefore, acquired the adverse possession over the land as 19 years past. (vii). Plaintiffs treating owner themselves sold the land situated at Motibaba road by registered sale deed to 8 different persons and the defendants in alternative pleaded that if the settlement dated 20.12.1959 is not accepted then the agricultural land of Kent Shivpuri situated at A-B Road which is disputed land of Motibaba Road be clubbed and partition be made of both the lands. (viii). Plaintiffs sold the total land of survey no.57/1 situated at Motibaba road in which defendants were having ½ share now mala fidely with a view to grab the disputed land filed the suit for partition in these circumstances the suit as filed for partition deserves to be dismissed. (ix) An objection has further been raised that Mehar Ali left three daughters namely Kaneej, Amari Khan and Manphool but the plaintiffs have not impleaded them in the plaint therefore, the suit is not maintainable. (x) Further objection has been raised that looking to the valuation of the sale deed, suit as filed is not maintainable for want of pecuniary jurisdiction. 4. During pendency of the suit, plaintiffs sold 1/ 2 share from the disputed land in favour of the respondents No. 1 to 6, therefore, they were impleaded as plaintiffs. 5. During pendency of the suit in the trial Court, Mst. Sugra (Plaintiff No.2) and Shaukin Ali (Plaintiff No.3) died and legal heirs of Mst. Sugra were not brought on record and legal representatives of Shaukin Ali were brought on record and their names got deleted by order dated 8.9.1994. Similarly, Ajmeri D/o. Roshan Ali also died but legal representatives were not brought on record. The defendant Mst. Sugra (Plaintiff No.2) and Shaukin Ali (Plaintiff No.3) died and legal heirs of Mst. Sugra were not brought on record and legal representatives of Shaukin Ali were brought on record and their names got deleted by order dated 8.9.1994. Similarly, Ajmeri D/o. Roshan Ali also died but legal representatives were not brought on record. The defendant Mst. Happo W/o. Roshan Ali died and her name was deleted, in these circumstance, the learned trial court came to the conclusion that all the necessary parties which are required in the partition suit have not been represented due to the death, therefore, the suit abated and accordingly, dismissed the suit vide judgment and decree dated 11.8.2005. Only respondents No. 1 to 6 lis pendice purchaser preferred the appeal and the appeal was allowed and suit of the plaintiffs was decreed for partition of the disputed land by impugned judgment and decree dated 13.3.2006. 6. Being aggrieved by the impugned judment and decree passed by the learned first appellate Court, the appellants have preferred this appeal on the grounds that the judgment and decree passed by the learned first appellate Court is illegal and without jurisdiction. The learned lower appellate Court is not justified in holding that in spite of death of plaintiffs- Mst. Sugra, Shaukin Ali, defendant No. 4 Ajmeri and defendant No. 6 Kallo, the suit is not abated. The learned lower appellate Court is further not justified in considering the fact that Kamar Ali himself admitted the defendants’ plea that Mehar Ali and Roshan Ali were the owner of the land situated at A-B Road and Motibaba Road, Shivpuri. There was an agreement and settlement between Roshan Ali and Mehar Ali that the land situated at A-b Road shall remain in possession of Roshan ali while land situated at Motibaba road, Shivpuri will remain in the share of Mehar Ali and accordingly, Roshan Ali and Mehar Ali remained in possession as owner as per settlement. The learned lower appellate Court is not further justified in relying upon the judgment Ex.P/5 passed by High Court, in which it has been held that undivided share can be sold but this judgment can not affect the partition suit as suit of the partition has to be decided by clubbing all the joint properties of the parties. 7. The learned lower appellate Court is not further justified in relying upon the judgment Ex.P/5 passed by High Court, in which it has been held that undivided share can be sold but this judgment can not affect the partition suit as suit of the partition has to be decided by clubbing all the joint properties of the parties. 7. Learned trial Court is justified in dismissing the suit as abated and on merits the suit was not decided, therefore, if the view of learned lower appellate Court that the suit is not abated is accepted then the case should have been remanded to the learned trial Court for decision on merits but the appellants filed cross objections before the learned lower appellate Court that Mst. Sugra (plaintiff No.2) and Shaukin Ali (plaintiff No.3 ) died and no legal heirs have been brought on record and the respondents being lis pendice purchaser have no right to file appeal but the learned lower appellate has illegally dismissed the cross objections in cryptic manner, therefore, the learned lower appellate Court is not justified in dismissing the cross objection. 8. Following Substantial Questions of law have been framed by this Court vide order dated 7.9.2010 :- (i) “Whether the First Appellate Court has committed an error of law in holding that after death of Ajmeri, the suit was not abated? (ii) “Whether the First Appellate Court has committed an error of law in not deciding the application filed by the plaintiffs No. 3 to 8 for substitution of LRs? (iii). Whether the first appellate Court has committed an error of law in holding that there was no necessity to bring the LRs of deceased Ajmeri on record after reversing the order passed by the trial Court on an application filed under Order 22 Rule 4 of the CPC for substitution of LRs of Ajmeri by the purchaser of the land from Shanti Bai? (iv). “Whether the First Appellate Court has committed an error of law in pronouncing the judgment on merits instead of remanding the case back to the trial Court after holding that there was no abatement of the suit? 9. (iv). “Whether the First Appellate Court has committed an error of law in pronouncing the judgment on merits instead of remanding the case back to the trial Court after holding that there was no abatement of the suit? 9. Learned trial Court vide its judgment dated 11.8.2005 has decided issues No. 9 and 15 and held that Mahila Kaneej, Amari Khan and Manphool are necessary party in the suit and it has further been held that after the death of Mst.Sugra, Shaukin Ali and Mst. Happo, Ajmeri and Kallo, the suit has abated as their legal representatives are not brought on record. 10. Learned trial Court has held that the plaintiffs have filed suit for declaration of title and partition and in a suit for partition every co-parcener is necessary party and after the death of necessary party, no effective decree can be passed, the suit is abated and on that very ground, the suit has been dismissed. 11. Learned lower appellate Court has framed two questions for consideration regarding abatement of the suit and held that the learned trial court has rejected the application dated 19.9.1983 on technical ground that the original plaintiffs have not given any application for bringing legal representatives of Ajmeri on record and lis pendice purchaser Shivnarayan had no locus standi to file application for bringing legal representatives of Ajmeri on record. 12. Learned trial Court vide its order dated 8.9.1994 has allowed the application filed by Shivgopal for deleting the names of legal representatives of Mst. Sugra, Shaukin and Kamar Ali on the ground that Shaukin Ali has sold his property to Shivgopal and there is no dispute regarding the land sold by Shaukin Ali as his estate is represented by Shivgopal and others. 13. Learned trial Court has held that original plaintiffs Gaur Ali and Shaukin Ali have not filed any application for bringing legal representatives of Ajmeri on record, even it is taken on record then share of Mst. Sugra, Shaukin Ali and Mst. Happo are represented in the suit through their successor in title (purchasers). Legal representatives of Ajmeri were not brought on record. Sugra, Shaukin Ali and Mst. Happo are represented in the suit through their successor in title (purchasers). Legal representatives of Ajmeri were not brought on record. Learned appellate Court has placed reliance in this regard on a judgment of Hon’ble apex Court in the matter of Gopalan Nambyar v. Balakrishanan, AIR 1995 SC 1852 in which it has been held that “the parties have acquired the right due to death of one of the party who are already on record, the appeal does not abate.” 14. Learned counsel for the appellants has submitted that the judgment cited by learned lower appellate Court is not applicable for Ajmeri whose legal representatives have not been brought on record. 15. Learned counsel for the appellants has cited a judgment of Hon. apex Court in the matter of Mukhtiar Singh and another v. Kishan Kaur (Smt.) and others, (1996) 7 SCC 299 in which it has been held that “where mutation in revenue records jointly in the names of all the defendants, one of the defendants dying during the pendency of the suit, application for impleading his legal representatives filed after long and unexplained delay, in such circumstances, the High Court rightly held that, the mutation being jointly in the name of all the defendants, the suit abated as a whole and could not proceed against other defendants.” 16. Learned counsel for the appellants has also cited a judgment of this court in the matter of Kishun @ Ram Kishun (dead) through LRs v. Bihari (dead) by LRs, 2005 (4) MPLJ 1, in which it has been held that “where decree passed in favour of a party, who was dead or against a party, who was dead, is a nullity. As in the absence of the legal heirs being brought on record, the appeal itself abates.” 17. Learned counsel for the appellant has also cited judgment of this Court in the matter of Hatunbi v. Bunnabi, 1972 JLJ SN 18 in which it has been held that “there can be no doubt that in a suit for partition all the co-sharers must be joined as party. Under the Mohammadan law the daughter is a sharer. Whether she did not succeed to her father’s property because of the facts alleged by the plaintiff is a question to be tried in the suit. She would necessarily be a necessary party. Under the Mohammadan law the daughter is a sharer. Whether she did not succeed to her father’s property because of the facts alleged by the plaintiff is a question to be tried in the suit. She would necessarily be a necessary party. It is the duty of the Court to add a person as a property party in order to avoid needless multiplicity of suit and protect his interest or the interest of party already on record.” 18. Learned counsel for the appellants has also cited judgment of this Court in the matter of Dwarika Prasad v. Nirmala and ors., 2010 (2) JLJ 188 = 2010 (I) MPJR 285, in which it has been held that “in a suit for partition after the death of plaintiff his daughter will inherit the property. She is entitled to be substituted as right to sue survives to her.” 19. On the other hand, learned counsel for the respondents has cited judgment of Hon. apex Court in the matter of Raj Kumar v. Sardari Lal and others, (2004) 2 SCC 601 , in which it has been held that “under Order 22 Rule 10 of CPC confers a discretion on the Court hearing the suit to grant leave for joinder of party concerned. Bringing of a lis pendens transferee on record is not as of right but in the discretion of the Court, but though not brought on record, the lis pendens transferee remains bound by the decree.” 20. Learned counsel for the respondents has submitted that the estate of the deceased was represented by other family members, therefore, the question of abatement does not arise. Learned lower appellate Court has rightly passed the impugned judgment and decree by setting aside the judgment and decree of the trial Court. In support of his arguments, he has cited a judgment of Hon. apex Court passed in the matter of Mohd. Hussain and v. Gopibai and ors. 2008 (2) JLJ 206 = (2008) 3 SCC 233 in which it has been held as under :- 13. In N.K. Mohd. Sulaiman Sahib v. N. C. Mohd. Ismail Saheb, this Court in para 14 observes as follows : (AIR p.796) “14. Ordinarily the Court does not regard a decree binding upon a person who was not impleaded eo nomine in the action. But to that rule there are certain recognized exceptions. In N.K. Mohd. Sulaiman Sahib v. N. C. Mohd. Ismail Saheb, this Court in para 14 observes as follows : (AIR p.796) “14. Ordinarily the Court does not regard a decree binding upon a person who was not impleaded eo nomine in the action. But to that rule there are certain recognized exceptions. Where by the personal law governing the absent heir the heir impleaded represents his interest in the estate of the deceased, there is yet another exception which is evolved in the larger interest of administration of justice. If there be a debt justly due and no prejudice is shown to the absent heir, the decree in an action where the plaintiff has after bona fide enquiry impleaded all the heirs known to him will ordinarily be held binding upon all persons interested in the estate. The Court will undoubtedly investigate, if invited, whether the decree was obtained by fraud, collusion or other means intended to overreach the Court. The Court will also enquire whether there was a real contest in the suit, and may for that purpose ascertain whether there was any special defence which the absent defendant could put forward, but which was not pur forward. Where however on account of a bona fide error, the plaintiff seeking relief institutes his suit against a person who is not representing the estate of a deceased person against whom the plaintiff has a claim either at all or even partially, in the absence of fraud or collusion or other ground which taint the decree, a decree passed against the persons impleaded as heirs binds the estate, even though other persons interested in the estate are not brought on the record. This principle applies to all parties irrespective of their religious persuasion.” (emphasis supplied) 21. It has been further held by the Hon. apex Court in the above mentioned case that “death of one of the respondents during pendency of the appeal where the legal representatives were sufficiently represented by other heirs on record it would be too technical to set the entire judgment of High Court on ground of not bringing the entire body of respondent’s heir and legal representatives on record under Order 22 Rule 4, 11 and section 100 of CPC.” 22. The judgment of Hon’ble apex Court relates to a case where one of the party to the suit has died during pendency of the appeal and his estate is represented by other respondents. 23. Learned counsel for the respondents has also cited judgment of Hon’ble apex Court relating to provisions of section 52 of the Transfer of Property Act, 1882 and under Order 22 Rule 10 CPC, passed in the matter of Raj Kumar v. Sardari Lal and others, 2004 (II) MPWN 45 = (2004) 2 SCC 601 and another judgment passed in the matter of Dhurandhar Prasad Singh v. Jai\ Prakash University and others (2001) 6 SCC 534 . 24. Learned counsel for the respondents has also cited judgment of this Court passed in the matter of Dhuli Ramaji Jat and another v. Vijaykumar Madanlalji Garg and another, 1997 (2) JLJ 284 = 1997 (2) MPLJ 520 , in which it has been held that “under Order 22 Rule 10 confers a discretion on the Court hearing the suit to grant leave for joinder of party concerned. Bringing of a lis pendens transferee on record is not as of right but in the discretion of the Court, but though not brought on record, the lis pendens transferee remains bound by the decree.” 25. In the present case, the judgments cited by learned counsel for the respondents may be applied for not bringing on record the legal representatives of Mst. Sugra, Shaukin Ali and Happo who have sold their shares and purchasers are representing their estate as defendants but the same cannot be said regarding Ajmeri whose legal representatives have not been brought on record and who was having independent share and interest in the suit property whose estate has not been represented by her legal representatives. Therefore, the judgments cited by learned counsel for the respondents are not applicable to the present case and the learned appellate Court is not justified in holding that the suit has not abated due to death of Ajmeri. Since, the original plaintiffs and defendants are Muslim, therefore, it cannot be said that the estate of Ajmeri was represented by her mother, brothers and sisters. 26. Since, the original plaintiffs and defendants are Muslim, therefore, it cannot be said that the estate of Ajmeri was represented by her mother, brothers and sisters. 26. Learned counsel for the respondents has also cited judgments of Hon’ble apex Court passed in the matter of Chiranjilal Shrilal Goenka v. Jasjit Singh and others, (1993) 2 SCC 507 , in which it has been held that “inheritance is in some sort a legal and fictitious continuation of the personality of the dead man, for the representation is in some sort identified by the law with him who he represents. The rights which the dead man can no longer own or exercise in propria persona and the obligations which he can no longer in propria persona fulfill, he owns, exercises and fulfills in the person of a living substitute. To this extent, and in this fiction, it may be said that legal personality of a man survives his natural personality; until his obligations being duly performed, and his property duly disposed of, his representation among the living is no longer called for.” 27. Learned trial Court is fully justified in giving its finding with regard to issues No. 9 and 15. 28. Therefore, the learned lower appellate Court is not justified in holding that after death of Ajmeri, the suit is not abated and further in holding that there was no necessity to bring the legal representatives of deceased Ajmeri on record after reversing the order passed by the learned trial Court on an the aplication filed under Order 22 Rule 4 CPC for substitution of legal representatives of Ajmeri by the purchaser of the land from Shanti Bai. Consequently, with regard to substantial question of law No. 4 needs no answer because since the learned lower appellate Court is not justified in holding that the suit is not abated because the legal representatives of Ajmeri were not brought on record. 29. Thus, substantial questions of law No. 1 and 3 are decided against the respondents and in favour of the appellants and substantial question of law No. 4 needs no answer looking to the findings regarding substantial questions of law No. 1 and 3 in favour of the appellants. 30. So far as substantial question of law No. 2 is concerned, the plaintiffs no. 30. So far as substantial question of law No. 2 is concerned, the plaintiffs no. 3 to 8 have been brought on record by allowing application under Order 22 Rule 10 CPC on the ground that they have purchased share of original plaintiffs and they have been ordered to be arrayed as party just for prosecuting the suit and just for protecting their interest after devolution of the rights and substantial question of law No. 2 has been framed in the absence of any proposed substantial question fo law pointing out that the appellate court has committed an error of law in deciding the application filed by the plaintiffs No. 3 to 8 for substitution of legal representatives. In fact, before the trial Court there was no application for substitution of legal representatives of plaintiff No. 3 to 8, therefore, substantial question of law No. 2 is also unnecessary and therefore, needs No answer. 31. Since, the suit before the trial Court has abated as legal representatives of Ajmeri have not been brought on record after her death and learned lower appellate Court is not justified in setting aside the judgment and decree passed by the learned trial Court, therefore, considering the findings of substantial questions of law No. 1 and 3, appeal is allowed and the impugned judgment passed by the learned appellate Court is set-aside and the judgment passed by the learned trial Court is hereby restored. 32. Respondents shall bear their own costs as well as costs of the appellants. Counsel fee, if pre-certified, be calculated. 33. Decree be drawn accordingly.