Raj Kumar was owner of the suit property who died on 4th February, 1994.
It was stated that rent was deposited in Court.
In such situation, Shiv Kumar did number have any right to file the suit and only his sons had such a right.
It was held that the plaintiff had himself produced the Will dated 14th December, 1988 whereby Raj Kumar, original owner of the property in question bequeathed the property in favour of the appellants Pradeep Kumar and Kuldeep Kumar sons of Shiv Kumar.
During pendency of the suit, Shiv Kumar Dubey died on 11th August, 1996 and the appellants Kuldeep Kumar and Pradeep Kumar sons of Shiv Kumar Dubey and Smt.
Dayawati widow of Shiv Kumar Dubey were substituted as plaintiffs being his heirs.
Writ Petition No.52578 of 2004.
Aggrieved by the decree of the trial Court, the tenant preferred a revision petition before the District Judge, Moradabad, which was allowed vide order dated 2nd September, 2004.
Shiv Kumar Dubey, brother of Raj Kumar filed the suit for eviction of the respondent tenant in his capacity as heir of Raj Kumar on the ground of number payment of rent on 24th April, 1995.
The suit was companytested by the tenant who has also died during pendency of the proceedings in this Court and who has been substituted by his legal heirs by filing a written statement admitting that Raj Kumar was the owner and Shiv Kumar was his brother and heir apart from other heirs.
No objection was, however, raised by the tenant on that account.
In his companynter affidavit, respondent No.3 has stated that only appellants Nos.1 and 2 had the title to the shop and they companyld seek eviction only in their own capacity and number in their capacity as legal heirs.
During pendency of the matter in this Court, the respondent has died and his heirs have been brought on record.
Sister of Raj Kumar, an heir of Raj Kumar, was also a necessary party.
It was observed that the defendant had number mentioned the name of any other heir of Raj Kumar in the written statement.
Though the heirs of the deceased respondent have been duly served, only respondent No.3 has chosen to put in appearance and other heirs are proceeded against ex parte.
Accordingly, the trial Court passed a decree for eviction and for payment of rent on 8th December, 1998.
It may be mentioned that Raj Kumar had executed Will in favour of appellants Kuldeep Kumar and Pradeep Kumar but the said appellants were shown in cause title only as heirs of Shiv Kumar and number as owners.
Issue Nos.
The question for companysideration is whether the suit filed by the father of the appellants in respect of property owned by appellants Nos.1 and 2 companyld be held to be number maintainable even when the appellants were added as plaintiffs as heirs of their father who died during pendency of the suit and whether description of the appellants who are owners as heirs instead of owners in their own right will be a case of mere error, defect or irregularity number affecting the merits or jurisdiction of the Court which did number affect the maintainability of the suit.
The appellants moved the High Court by way of writ petition against the order of the District Judge.
1 and 4 were decided in favour of the plaintiffs and against the defendant.
2 and 5 were also decided against the defendant.
Issue Nos.
ADARSH KUMAR GOEL, J. Leave granted.
This appeal has been preferred against judgment and order dated 19th October, 2012 passed by the High companyrt of Judicature at Allahabad in Civil Misc.
