T.S. Misra, J.
1. This appeal by the plaintiff arises out of a suit for possession over the property in dispute. The plaintiff alleged that he had a grove of 18 bighas and was Bhumidhar thereof. Trees were planted in that grove with the permission of the zamindar before 30-6-1962. The house in dispute is located inside that grove as shown in the site plan by letters ABCD Cha Chha Ja Jha. The plaintiff gave this house to the defendants about ten years before the institution of the present suit for looking after the aforesaid grove. After some time the defendants left the service of the plaintiff whereupon they were asked to vacate the said house, but they failed to do so, hence the suit for their ejectment.
2. The suit was contested by defendant No. 1 on the grounds inter alia that the house in dispute was constructed by his grandfather and he was the owner thereof, and that it did not lie in the plaintiff's grove.
3. The trial court found that the house in dispute did not lie in the plaintiff's grove. It also held that the house had been constructed by the defendants' grandfather. The plaintiff having no right, title or interest in the house in suit was not entitled to seek possession thereof. On these findings the suit was dismissed. Against that decision the plaintiff preferred an appeal. The appellate court below allowed that appeal and remanded the suit for retrial. The trial court after retrial of the suit decreed it and granted a month's time to the defendants to vacate the said house. The trial court on rehear-in the suit had found that the house in question did lie in the plaintiff's grove and that the same was built by the plaintiff. It further found that the defendants' possession over that house was that of licensees which stood revoked; hence they were liable to be ejected. Against that decision the defendants preferred an appeal before the District Judge. The appeal was heard and decided by Civil & Sessions Judge, Faizabad.
4. On an appraisal of the evidence the appellate court below found that the plaintiff had not led satisfactory evidence to show that he had got the house constructed, rather it was established that the house in dispute was got constructed by the grandfather of Dukhi, defendant. It also found that it was not given to the defendant in the year 1952 as alleged; that the defendants would be the owners of the said house even under Section 9, U. P. Zamindari Abolition & Land Reforms Act; that, the plaintiff was not in possession over the house in dispute for a long time and if he had any right in the said house that right had extinguished by lapse of time. On these findings the appeal was allowed and the suit of the plaintiff was dismissed. The plaintiff having died his legal heirs have preferred this appeal.
5. For the appellant it was urged that Reg. Civil Appeal No. 45 of 1967 out of which second appeal has arisen was filed against Dr. Narsingh Dayal, the plaintiff who was dead on that date. Dr. Narsingh Dayal died on 29-1-67 whereas Reg. Civil Appeal No. 45 of 1967 was filed on 6-2-67. The submission, therefore, was that appeal No. 45 of 1967 having been filed against a dead person, w.as a nullity and the appellate court below had no jurisdiction to entertain and decide it.
6. It appears that an application was moved before the court below for substituting the legal representatives of deceased Dr. Narsingh Dayal as respondents in the appeal. That application was allowed by an order dated 13-11-61. A perusal of that order discloses that the appellate court below gave benefit of Section 5 of the Limitation Act to the appellants and treated the appeal to have been filed on the date the order was passed i.e., 13-11-67. Learned counsel for the appellants before me has urged that it was not open to the appellate Court below to give benefit of Section 5 of the Limitation Act to the defendant-appellants in that appeal and to entertain an application for substitution of the legal heirs of the deceased plaintiff. If the defendants wanted to file an appeal and to take benefit of Section 5, Limitation Act they should have, according to the learned counsel, filed a fresh memo of appeal against the legal representatives of the deceased Dr. Narsingh Dayal as well as an application under Section 5 of the Act. In support of his contention learned counsel for the appellants has placed reliance on Bankey Bihari v. Mahadeo Prasad : AIR1953All97 and State of West Bengal v. Manisha Maity : AIR1965Cal459 .
7. In the case of Bankey Bihari (supra) one Smt. Brij Rani had died on 24th September, 1946, prior to the filing of the appeal by the appellants in the Court of the District Judge. Her legal representative Mahadeo Prasad was sought to be substituted under Order 22 of the Code of Civil Procedure. It was held that since Brij Rani had died prior to the filing of the appeal, there could be no substitution of the name of Mahadeo in her place under Order 22, Code of Civil Procedure. Further it was observed that what was required was that the appellant should have impleaded Mahadeo Prasad as the respondent straightway in the appeal. His name was brought on the record on 17th July, 1947, on the basis of the application of the appellants dated 2nd January, 1947. It was, therefore, assumed that the appellants impleaded Mahadeo Prasad as the respondent on 2nd January, 1947 but even by that date the period of limitation for filing the appeal against Mahadeo had already expired. Consequently, it became necessary for the appellants to invoke Section 5, Limitation Act, for condonation of the delay. It appears that sufficient ground was not found to exist for condoning the delay and the application under Section 5, Limitation Act, was dismissed. It was asserted that if an appeal is filed against the dead person his legal representatives cannot be substituted by taking resort to the provisions of Order 22 of the Code of Civil Procedure. The appeal could be filed straightway by impleading the legal representatives of the deceased party. However, if an application was moved for bringing on record the legal representatives of the deceased, the appeal would be deemed to have been presented on the date of the application and the period of limitation would be computed on the basis that the appeal was filed on such date. In the case of State of West Bengal v. Manisha Maity : AIR1965Cal459 the same principle was reiterated observing that if an appeal is preferred against a dead respondent the appeal is still-born and is no appeal in the eye of the law and that nothing in Order 22 of the Code of Civil Procedure will revive the appeal when the death of the respondent comes to light. Pointing out the remedy to such an appellant it was observed that he should file an application for presentation of the appeal against the heirs of the dead person afresh. If the time for filing the appeal is over, he is to present an application under Section 5, Limitation Act, therein explaining the delay in presenting the appeal afresh against the heirs of the dead person. If he makes out sufficient cause for making the belated prayer, the Court may allow to amend the memo of appeal by incorporation of the names of the heirs and legal representatives of the dead person and treat the appeal as freshly presented appeal against the heirs. Similar situation arose in the case of Bank of Commerce Ltd., Khulna v. Protab Chandra Ghose before the Federal Court. In that case it was found that one of the respondents had died prior to the institution of the appeal before the Federal Court. The appellant had moved an application for bringing on record the legal representatives of that respondent. That application was rejected on the ground that the respondent had died before the appeal was filed in that Court and not after the appeal was filed. The appellant then moved another application for substitution of the legal representatives of that deceased respondent. The Federal Court dealt with that application on the footing that so far as the heir of the deceased respondent was concerned, an appeal was for the first time being preferred then and it is only on that basis that the question of application under Section 5 of the Limitation Act arose. The Federal Court held that as the application could not come under either of the two categories specified in Rule 6 of Order 15 of the Federal Court Rules, namely, substitution of the representative of one who was a party to an appeal and in addition of a party, the application was treated on the footing that an appeal was for the first time being preferred as against the legal representatives of the deceased. It was further held that ignorance of death of a party in the absence of negligence or other act or omission for which the applicant could be held responsible would be a sufficient cause within Section 5, Limitation Act. It was found that the appellant had made out sufficient cause for the delay in making the application and the benefit of Section 5 of the Limitation Act was accordingly given to him. Referring to a decision of the Chief Court of Oudh. AIR 1933 Oudh 523 (FB) it was observed by the Federal Court that even in that case the learned Judges declined to lay down any hard and fast rule and recognised that the question must be determined by reference to all the circumstances of each particular case, with a view to securing the furtherance of justice. The legal representative was, therefore, added as a party to the appeal and the cause title of the petition of appeal was amended.
8. Having thus examined the legal concept as expounded in the decisions referred to hereinabove I may now proceed to consider the facts and circumstances of this case in the light of the principles enunciated therein. Admittedly, Dr. Nar-singh Dayal Gaur had died on 29th January, 1967. The first appeal out of which this second appeal has arisen was filed on 6th February, 1967 against Dr. Narsingh Dayal Gaur. The appeal was thus filed against a dead person and was, therefore, still-born. The provisions of Order 22 of the Code of Civil Procedure would, therefore, not apply. An application waa, however, moved by the appellant in that appeal on 16th May, 1967 stating that Dr. Narsingh Dayal Gaur had died on 20th February, 1967. His name was, therefore, sought to be deleted and his son Dr. Saheb Saran Gaur was sought to be substituted. This application was opposed by the respondent in that appeal who stated that Dr. Narsingh Dayal Gaur had died on 29th January, 1967 and not on 20th February, 1967 and that the appellant had full knowledge of the death of Dr. Narsingh Dayal Gaur. Thereafter, the appellant in that appeal filed another application on 16th September, 1967 explaining the circumstance in which he got the information that Dr. Narsingh Dayal Gaur had died on 20th February, 1967. He further stated that even if he had died on 29th January, 1967 his appeal may be treated within time and Saheb Saran Gaur be substituted in place of the deceased Dr. Narsingh Dayal Gaur. On 28th October, 1967 the learned counsel for the appellant in that appeal stated before the Court that the date of the death of Dr. Narsingh Dayal Gaur be accepted as 29th January, 1967, After hearing the parties the appellate Court below allowed the application of the appellant substituting Dr. Saheb Saran Gaur granted the benefit of Section 5 of the Limitation Act to the appellant, treated the appeal to have been filed on the date when the order was passed and condoned the delay in filing the appeal. These facts make it quite manifest that the appellate Court below was satisfied that sufficient ground had been made out by the appellant before it for seeking benefit of Section 5 of the Limitation Act. The delay in filing the appeal was condoned. The appeal was treated to have been filed on the date of the order and as the delay had been condoned, it was treated to be within time. This order of the appellate Court below was in my view in conformity with the principles laid down by the Federal Court in (supra). It seems that it is also not contrary to the law laid down. in : AIR1953All97 and : AIR1965Cal459 . In both these cases as also in (supra) it was laid down that the provisions of Order 22 of the Code of Civil Procedure would not apply in a case where the appeal was filed against a person who had died prior to the filing of the appeal but in all the three cases referred to hereinabove it was also laid down that if an application is moved for substituting the legal heirs of the deceased who died prior to the institution of the appeal the appeal would be taken to have been filed on the date of the application and if the appeal had by that time become barred by time the appellant could seek condonation of delay under Section 5 of the Limitation Act. In the case on hand the appellate Court below has not passed the order under Order 22 of the Code of Civil Procedure. It had treated the appeal as having been filed on the date of the order and then granted the benefit of Section 5 of the Limitation Act to the appellant. The delay in filing the appeal was condoned and the appeal was then treated to be within limitation. I find no illegality in its order.
9. It was then contended that the appellate Court below had misread the evidence of Dr. Saheb Saran Gaur and had wrongly held that the house in dispute was not constructed by the plaintiff. I was taken through the statement of Dr. Saheb Saran Gaur. I have also perused the statement of Dr. Narsingh Dayal Gaur. The appellate Court below had found that the statements of these two persons were contradictory to each other. Dr. Saheb Saran Gaur stated that the house in question was given to Dukhi and other members of his family whereas Dr. Narsingh Dayal Gaur stated that Dukhi was permitted to live in that house. There may not be material contradictions between these two statements but at the same time the appellants had failed to prove that the house in question was constructed by the plaintiff. The finding of the appellate Court below was arrived at by a close scrutiny of the entire evidence on record. The appellate Court below had found that the house in dispute was not constructed by the plaintiff but was constructed by the grandfather of the defendant No. 1. It is a finding of fact and I find no reason to interfere with the same.
10. No other point was raised.
11. In the result, the appeal fails and is dismissed. Since none appeared on behalf of the respondents, I make no order as to costs.