JUDGMENT 1. The instant second appeal is filed by the alleged legal representatives of Bashir Khan to challenge judgment and decree dated 27.09.2017 passed by Additional District Judge, Merta (for short, learned first appellate Court). The learned first appellate Court, by the impugned judgment and decree affirmed judgment and decree dated 17.12.2014 passed by Civil Judge, Merta (for short, learned trial Court) decreeing the suit of respondent- plaintiff for arrears of rent of eviction. 2. It is not in dispute that at the threshold, respondent-plaintiff filed a suit for eviction and recovery of arrears of rent against original defendant Bashir Khan before learned trial Court, precisely on the ground that a valid notice for terminating tenancy under Section 106 of the Transfer of Property Act, 1882 was given to the tenant and despite termination of tenancy, he has not handed over the possession. It is also prayed in the suit that tenant may be asked to pay mesne profit for use and occupation of the rented premises from the date of termination of tenancy at the rate of Rs. 2,500/- per month. 3. The learned trial Court on the basis of pleadings of the rival parties settled six issues for determination, and finally recorded its finding that tenancy has been rightly terminated, and consequently, decreed the suit. 4. Feeling aggrieved by the judgment and decree of the learned trial Court, Bashir Khan and Kasam appealed before the learned first appellate Court. It so happened that during pendency of the appeal, Bashir Khan expired but this fact was not brought to the notice of first appellate Court, and therefore, the learned first appellate Court, while examining the appeal on merits dismissed the same. There remains no quarrel that being appellant, it was duty of the legal heirs of Bashir Khan to make endeavour before the learned first appellate Court for being substituted in place of Bashir Khan, by laying appropriate application under Order 22 Rule 3 CPC or in the event of delay, by invoking Rule 9 for setting aside abatement of appeal qua Bashir Khan. No such effort was made by the legal heirs of Bashir Khan and it is for the first time before this Court, they have preferred this appeal by asserting their right as such. 5. No such effort was made by the legal heirs of Bashir Khan and it is for the first time before this Court, they have preferred this appeal by asserting their right as such. 5. In my considered opinion, when the legal heirs of Bashir Khan were not party to the litigation before the learned first appellate Court, the instant appeal on their behest is not maintainable. It is noteworthy that before this Court also, no application under order 22 Rule 3 CPC is filed by the alleged legal heirs of Bashir Khan. 6. Learned counsel appearing for the respondent landlord Mr. Madhusudan submits that the decree passed by the learned trial Court has already been executed and possession of the property has also been taken. Even otherwise also, it is a case of concurrent finding of fact by both the Courts below. 7. In view of the fact that the first appeal itself was abated and the instant appeal at the behest of alleged legal heirs of appellant Bashir Ahmed is not maintainable, coupled with the fact that decree stands executed, the same is hereby dismissed.