Judgment : Asim Kumar Ray, J. Being aggrieved by and dissatisfied with the judgment dated February 9, 1990 and decree signed on February 27, 1990 passed in Title Appeal No. 22 of 1987 by learned Additional District Judge, Purulia confirming the judgment dated December 23, 1986 and decree signed on January 15, 1987 passed in title Suit No. 106 of 1980 by learned Assistant District Judge(Additional ) Purulia, this appeal has been preferred. Title Suit No. 106 of 1986 was initiated by one Banka Behari Chakraborty of village Gopalnagar,. P.S.- Manbazar, District- Purulia on behalf of self and as representative of the village community of the aforesaid village praying for declaration of Title and recovery of khas possession of a portion of the property in dispute. The C.S. plot No. 970 measuring 4 decimal was originally belonged to one Keshab Bauri. The village community acquired that plot for Gopalnagar Asutosh M.E.(Junior) High School against some consideration money paid to the said owner. The C.S. plot No. 969 measuring one decimal originally belonged to Kalipada Chakraborty and Bamapada Chakraborty , two brothers and that land was also acquired from the said owners in exchange of one decimal land appertaining to Plot No. 547 of Mouza –Gopalnagar of the original plaintiff. Defendant No. 9 and 10 are the sons- cum- heirs of Kalipada Chakraborty and Bamapada Chakraborty respectively. Thereafter Gopalnagar A.T. School was established in 1944 on the said land and it continued there till 1962. The school was shifted to another site as the building standing on the previous site became unfit for occupation. Defendant No.7, as well successor of Keshab Bauri tried to encroach upon the C.S. plot No. 970 but the matter was settled amicably later. On May 17, 1980 the defendant No. 1 to 6 encroached on a portion of the suit property (property mentioned in the schedule-II of the plaint) and made a jupri there beside other construction on the said land. In that backdrop the suit was initiated. The suit was contested by defendant No. 1 to 6 and defendant No. 9 by filing written statement. They took a plea that the suit was bad for defect of parties , the plaintiff had no locus standi to institute the suit and the managing committee of the school was a necessary party. The defendant Nos. The suit was contested by defendant No. 1 to 6 and defendant No. 9 by filing written statement. They took a plea that the suit was bad for defect of parties , the plaintiff had no locus standi to institute the suit and the managing committee of the school was a necessary party. The defendant Nos. 1 to 6 admitted that the suit land belonged to school but they constructed a gumti and challa on the said land and have been running a shop therein with the permission of the then Secretary of the school managing committee. They have acquired title by adverse possession. Defendant NO. 9 disputed the title of the school in respect of CS Plot No. 969 and claimed that there was no exchange of that plot as alleged by the plaintiff. The title of the said plot of land remained with his predecessors in interest and the school was in illegal possession of the same for the period from 1945 t0 1961 and thereafter he/defendant regained its possession. The trial Court passed the judgment and decree in favour of the plaintiff and the same was confirmed by the first Appellate Court. In the background this is the second appeal before this Court. This Court has formulated the substantial questions of law and the same are as follows: 1) Whether the Learned Trial Court’s failure to frame specific legal issues on Order 7 Rule 4 of Civil Procedure Code renders the Judgment of Trial Court bad ab initio. 2) Whether a suit instituted in a representative capacity by a particular plaintiff be allowed to be continued after his/her death by lineal descendants of the original plaintiff without obtaining fresh permission under Order 1 Rule 8 Sub-Rule (2) of Civil Procedure Code and consequently whether the suit abates. 3) Whether in absence of fresh permission (supra) decree passed is non-est in law and hence inexecutable. Mr. Bidyut Kiran Mukherjee, learned senior advocate appearing on behalf of the appellant/defendant has contented that an issue under Order 7 Rule 4 of the CPC should have been framed to decide as to whether the school had existing interest after 1962 when it was shifted to new building and the suit was filed after 18 years. Mr. Bidyut Kiran Mukherjee, learned senior advocate appearing on behalf of the appellant/defendant has contented that an issue under Order 7 Rule 4 of the CPC should have been framed to decide as to whether the school had existing interest after 1962 when it was shifted to new building and the suit was filed after 18 years. He has contended that admittedly the suit instituted by one Banka Behari Chakraborty in his representative capacity after having permission of the Court and on his death whether the present plaintiff can continue the suit without obtaining permission afresh under Order 1 Rule 8 Sub-rule (2) of the CPC or the suit will abate. In the absence of permission in favour of the present plaintiff to continue with the suit in representative capacity the decree which was passed suffers from nullity. There was no publication after substitution as required by law. He has contended further that the case being initiated in representative capacity, application under Order 22(2) of CPC does not lie. He has relied on AIR 1937 Patna 149 and AIR (38) 1951 Madras 296. Mr. Siddhartha Banerjee, learned advocate appearing for the respondents/plaintiffs has contended that it is not admitted that the suit was instituted in representative capacity only. The suit was instituted in personal capacity as well as in representative capacity. The substitution application was allowed allowing the present plaintiffs to proceed with the suit. There was implied permission to the present plaintiffs/respondents. The personal capacity of the present plaintiffs was never challenged before the learned Courts below. He has contended further that the appellant/defendant took self contradictory case -- one by permission of the managing committee and another by adverse possession. He has invited the attention of the Court to the Order No. 67 dated March 13,1984, Order No. 68 dated April 10, 1984 and Order No. 70 dated July 5, 1984 passed by the trial Court. All the orders relate to information of death of the plaintiff and on applications under Order 22 Rule 2 of CPC and application under Order 1 Rule 8. He has contended that the suit does not abet even if the legal representative are not brought on record and at best the suit may be remanded back but not dismissed. All the orders relate to information of death of the plaintiff and on applications under Order 22 Rule 2 of CPC and application under Order 1 Rule 8. He has contended that the suit does not abet even if the legal representative are not brought on record and at best the suit may be remanded back but not dismissed. He has relied on AIR 1958 MP 189 , AIR 1981 Patna 315, AIR 1973 Bombay 167, AIR 1959 BOM 491 , AIR 1978 HP 22 and AIR 1981 J & K 79. He has taken me to the judgments of the learned Courts below and has contended that there is elaborate discussion in the body of the judgment regarding the locus standi of the present plaintiff to proceed with the matter. He has contended that ratio laid down in AIR 1937 Patna 147 and AIR (38) 1951 Madras 296 are in no-way indicate that the suit will abate if the legal representative are not brought on record. Mr. Mukherjee in reply to the argument advanced by his learned friend of the other side has contended that the decisions placed by his other side are all totally different factually and the same are not applicable in the facts and circumstances of the case. On plain reading of the pleading of the plaintiff it appears that plaintiff initiated the suit for self and as representative of the village community of village –Gopalnagar. It is not a case that the suit was instituted by the plaintiff only in his representative capacity. The Courts below to deal with issue No. 1 (Issue No.1- is there any cause of action in the suit ?) has discussed in the body of the judgment that the original plaintiff Banka Behari Chakraborty brought the suit for self and also on behalf of the people of village Gopalnagar. The original plaintiff died during pendency of the suit and after his death his heirs were substituted (vide page No. 3,9 and 10 of the paper book ). The first Appellate Court has dealt with the said point in the body of the judgment saying that as per the cause title of the plaint , the original plaintiff Banka Behari Chakraborty brought the suit on behalf of self and as representative of the village community of Gopalnagar. On the death of original heir his heirs have been substituted as plaintiff Nos. On the death of original heir his heirs have been substituted as plaintiff Nos. 1 to 8. The litigation was carried on by the substituted plaintiffs on behalf of themselves as well as representative of the aforesaid village community. The order sheets of the Trial Court revealed that the learned Court granted permission to the original plaintiff to sue on behalf of himself and the village community of Gopalnagar as their representative. There was public advertisement (Ext.5) and the said advertisement is a sufficient notice within the meaning of Sub-rule (2) of Order 1 Rule 8 of the CPC. The present plaintiffs are also villagers living in Gopalnagar village and they were competent to carry on the suit in the representative capacity on the strength of the permission granted by the Court earlier in terms of Order 1 Rule 8 of CPC. Mr. Mukherjee has contended that fresh permission was required to take carriage of proceeding further. But in the instant case there was no order passed by the Trial Court to that effect and as such the matter suffers from nullity. Mr. Mukherjee to give a thrust to his contention has relied on two decisions. In the case of Jagdam Ram –vs- Asarfi Ram and Ors., reported in AIR 1937 Patna 149, the Court held: “The suit does not abate even if the legal representatives of such persons are not brought on record within limitation. The same rule applies to appeals . It is for the Court to order whether or not the remaining persons should be allowed to conduct the case or whether more persons should be added as parties for this purpose. If others are brought on record it is addition of parties and not substitution on devolution of interest. When therefore some respondents die during the pendency of an appeal on a decision in such a suit, no question of abatement of an appeal arises and the Court can permit the appellant to proceed with the appeal against the remaining respondents. If others are brought on record it is addition of parties and not substitution on devolution of interest. When therefore some respondents die during the pendency of an appeal on a decision in such a suit, no question of abatement of an appeal arises and the Court can permit the appellant to proceed with the appeal against the remaining respondents. The provisions of Order 22, Civil P.C. which are applicable to suits or appeals by persons in their individual capacity cannot be made applicable to suits or appeals by some persons in representative capacity on behalf of numerous persons under Section 92 or Order 1, Rule 8 of the Code.” In the case of G.F.F. Foulkes and others –vs- A.S.Suppan Chettiar and another, reported in AIR (38) 1951 Madras 296, the Court held: “When a suit is brought by several persons in a representative capacity, and if one of them dies, the suit does not abate because, the right to represent others of a class is not right which ipso facto survives to the legal representatives of the deceased party. The source of that right is the order of the Court permitting the party to represent others. In such a contingency, namely, the death of one of the parties to whom originally permission was granted to institute a suit in a representative capacity, it is for the Court to decide whether the suit can be allowed to be continued by the surviving person or persons or whether other persons should be joined. The proper procedure, in a case like this, is for the remaining person or persons to apply to the Court for directions and it is for the Court to decide whether it will permit the remaining person or persons to whom the original sanction was given to continue to prosecute or defend the suit or appeal or it will give directions to bring on record additional person or persons.” The carriage of suit by substituted plaintiffs was granted impliedly as per tenor of the finding of the first Appellate Court. Even if it is considered that the permissions of representative capacity was not granted to the present plaintiffs/respondents then also the suit could not have been abeted as the personal capacity status remained as it is. Even if it is considered that the permissions of representative capacity was not granted to the present plaintiffs/respondents then also the suit could not have been abeted as the personal capacity status remained as it is. There is elaborate discussion in the body of the judgment of the first Appellate Court regarding ‘locus’ of the present plaintiffs/respondents covering Order 7Rule 4 of the CPC. On meticulous scrutiny of the record it appears that the original plaintiff Banka Behari Chakraborty died on February 28,1984. The relevant order is Order 67 dated March 13, 1984 and Order No. 68 dated April 10,1984 deals with two applications-- one application under Order 22 Rule 2 and another under Order 1 Rule 8 of the CPC. On the basis of that two applications Order No. 70 dated July 5, 1984 was passed by the Trial Court. Therefore, it is clear like crystal that it is not admitted that the suit was instituted in representative capacity only . It was instituted in dual capacity – personal capacity as well as representative capacity. In the case of Manrakhan Baldeo Prasad and others –vs- Amir Khan Azam Khan, reported in AIR 1958 MP 189 , the Hon’ble Apex Court has held : “No doubt there is ample authority for the proposition at the absence of permission, cannot prevent the suit from proceeding as one by individual plaintiff on his behalf only, without binding the other members of the class. The Court has further observed that as long as the plaintiff belonged to that Mohalla it was open to him either to pray that he as an individual should not be obstructed from going to the well; if he did not take the permission of the Court the suit could proceed , but the decisions might not bind others. It has been further observed that the defendant not having taken his objection at the proper time, the suit was allowed to proceed as one brought by plaintiff as an individual; this was correct as the relief was something he could be permitted to get. When the suit is of this type, the suit can proceed as one by an individual. When the suit is of this type, the suit can proceed as one by an individual. If one of the individuals gets the relief, the defendant should in his own interest give it to the others of that class.” In the case of Ramrup Pandey –vs- Kamla Prasad Sinha and another, reported in AIR 1981 Patna 315, the Hon’ble Court held : “Order 1, Rule 8 (1) (a) while necessitating the permission of the Court does not lay down that such permission must be, recorded in writing. Reasonably, enough in relevant circumstances and on appropriate materials the Court can infer that the permission of the court was given impliedly. This apart any irregularity on this score will be curable under the provision of S.99 of the Code of Civil Procedure. In the instant case initially the plaintiff filed the plaint in his individual capacity. Subsequently, however, he filed a petition for amendment of the plaint. The amendment sough for was that the plaintiff be given permission to sue in representative capacity and that the Rasta be declared to be in use of the public by virtue of the right of easement acquired. This prayer for amendment was heard and the prayer was allowed on payment of cost. The plaint was amended accordingly, and then notice as required in Order 1, Rule 8(2) was ordered to be issued. The order sheet indicates that the said notice was duly served. Amendment of the plaint necessitated an opportunity to the defendants to file additional written statement. The defendants got this opportunity and filed written statement. Issues framed earlier needed recast and issues were recast at the instance of the defendants. Under such circumstances the permission should be held to have been granted impliedly.” In the case of Mukaremdas Mannudas and others –vs- Chhagan Kisan Bhawasar and others, reported in AIR 1959 Bombay 491, the Court held that permission under Order 1 Rule 1 can be granted at the appellate stage. In the case of Smt. Ram Piari –vs- Shri Amar Singh and others, reported in AIR 1978 HP 22 , the Court has held : “The omission to obtain leave under Order 1 Rule 8 at the commencement of the suit cannot serve as a reason for dismissing the suit as withdrawn. No question of jurisdiction is involved. In the case of Smt. Ram Piari –vs- Shri Amar Singh and others, reported in AIR 1978 HP 22 , the Court has held : “The omission to obtain leave under Order 1 Rule 8 at the commencement of the suit cannot serve as a reason for dismissing the suit as withdrawn. No question of jurisdiction is involved. Leave can be granted at any stage after the suit has been filed.” The argument advanced by Mr. Mukherjee is concentrated specially on the backdrop of representative capacity of the present plaintiff but in reality the record speaks otherwise which have dealt with above. The judgment of the learned Courts below are very specific covering the point of the capacity of the present plaintiffs/respondents to take the carriage of the suit on the demise of their predecessor Banka Behari Chakraborty. There was no illegality in it. The question of issuance of fresh advertisement and fresh order in the instant case does not require as the orders which have been noted above are the answer to this point. It must be presumed that the permission to take the carriage of the suit further was impliedly given. The judgment passed by the learned Court below and the decree signed does not suffer from any illegality. In the result, the appeal stands dismissed and the rule being C.R.No. 1034(S) of 1990 is disposed of.