JUDGMENT

S.K. Seth, J.

1. This appeal is by the plaintiff. He lost in the Trial Court. Dispute relates to the residential house situated in Dewas more particularly described in Para 4 of the plaint. Plaintiff sought declaration, possession and permanent injunction in respect of the suit house supra.

2. In this appeal, it is admitted that the suit house belonged to Ramcharanlal who died issue-less on 5-6-1980. He had executed a power of attorney in favour of defendant No. 1 Narainprasad, for collection of the rent from the tenants residing in the suit house. The defendant No. 2 is the son of brother-in-law (wife's brother) of Ramcharanlal. It is also not in dispute that Shivcharanlal (original plaintiff) was the first cousin through male side of Ramcharanlal and Shivmangal, who subsequently came on record as the legal representative of Shivcharanlal was the son of real sister of late Ramcharanlal.

3. Shivcharanlal filed the suit seeking declaration that Ramcharanlal died instate and the plaintiff, being the sole surviving heir was entitled to inherit by way of succession the suit property of Ramcharanlal. He further claimed that he was entitled to the possession of the suit property and defendants should not interfere with the enjoyment of property. It is pertinent to point at this stage that during the pendency of suit original plaintiff died, and Shivmangal came on record under Order XXII Rule 5 by way of substitution based upon a will executed by Shivcharanlal in his favour. In the written statement, the basic contention was that Ramcharanlal until his last, lived with his brother-in-law, i.e., father of defendant No. 2, and the former on his accord, willing executed a will in favour of defendants before he died.

4. Based upon pleadings Court below framed issues and allowed parties to adduce evidence. The Trial Court held that original plaintiff Shivcharanlal was not the nearest surviving heir of late Ramcharanlal and consequently dismissed the suit. Hence this appeal. The respondents have also filed cross-objection under Order XLI Rule 22 in this appeal against the finding recorded by the Trial Court refusing to issue direction with regard to the delivery of possession of the suit house to the defendants.

5. The only question in this appeal is whether Trial Court committed illegality in dismissing the suit ?

6. At the time of final arguments, learned Counsel agreed that in view of the established facts, fate of this appeal hinges upon the question relating to right of Shivcharanlal to institute the suit based upon succession. As pointed above, Ramcharanlal died in 1980 and there is no dispute that succession to the estate of Ramcharanlal is governed by the Hindu Succession Act, 1956, assuming he died intestate as claimed by the plaintiff.

7. A combined reading of Section 8 to Section 13 of the Hindu Succession Act, 1956 shows that there are four categories of heirs of a male dying intestate and lay down the general rule of succession to the inheritable property. Accordingly, the property of such deceased would devolved firstly upon the Class I heirs specified in the schedule and in absence of Class I heir, upon Class II heir specified in the Schedule. In absence of Class I or II heir, then upon agnates of the deceased and lastly in absence of above three, upon the cognates of the deceased.

8. From the family tree as mentioned in the plaint, it is clear that Shivcharanlal was one of the agnates, i.e., first cousin from male side of the deceased. Definitely he was coming under the third category. Could he took precedence over Shivmangal ? The answer is obviously No. Ramcharanlal was the real brother of Gouribai, mother of Shivmangal. Shivmangal was one of heirs covered by item IV of class II heirs at the time of death of Ramcharanlal, being sister's son. It is in this backdrop, Trial Court rightly held that original plaintiff Shivcharanlal had no right to seek declaration and other reliefs in respect of the suit house. Trial Court also rightly rejected the claim of Shivmangal, who was simply substituted under Order XXII Rule 5 in the cause title in place of Shivcharanlal on the basis of a will alleged to have been executed by Shivcharanlal in the favour of Shivmangal. Law in this regard is quite clear. A legal representative is brought on record to continue the suit or proceedings on the same cause of action on which the suit was instituted by the deceased plaintiff. In other words, the legal representative step into the shoes of the original plaintiff and he cannot litigate his personal right as a legal representative. See , Gajraj v. Sudha and Ors. In this view of the matter and the emerging legal position, no infirmity or illegality could be attributed to the judgment and decree of the Trial Court so far as appellant/plaintiff is concerned on that score.

9. This brings us to the cross-objection filed by the respondents. It is contended that the Trial Court committed a mistake in not restoring the status quo ante regarding possession of the suit house on the date of institution of the suit. To appreciate this, it is necessary to keep in mind that by a consent order dated 26-8-1986, Trial Court appointment one Shri P.C. Jain, Advocate, as receiver in respect of suit house only to collect rent from tenants and maintain account. In the light of this, cross-objection has been filed. From the record, it appears that tenants did not pay rent to the Receiver appointed by the Trial Court, therefore, he submitted report dated 30-7-1992. He stated therein that he did not receive possession of any portion of the suit house nor tenants paid any rent to him despite notice, he therefore, craved leave of the Trial Court to relive him from the onerous task. Based upon said report, Trial Court vide order sheet dated 30-7-1992 discharged Shri Jain, Advocate from the receivership. Once it is clear and accepted by the parties that receiver was not put in possession of suit house nor recovered rent, then obviously, Trial Court was right in refusing to restore status quo ante and thereby conferring a right upon defendants to collect rent. The fallacy lies in the fact that it was not the suit by defendants to establish their right to property or to collect the rent. They could not take advantage of the weakness of the plaintiff s case. Thus, we find no merit and substance in the respondent's cross-objection and that stands rejected.

10. In the result, this appeal as well as the cross-objection fail and both are accordingly dismissed. However, in the facts and circumstances of the case, parties shall bear their own costs. Order accordingly.