Judgment

BACHAWAT, J.:- This appeal arises out of Title suit No. 12/9 of the 1946 instituted in the Court of the First Additional Subordinate Judge, Darbhanga. The plaintiff claimed declaration of their title and possession in respect of 70 bighas of land in plot No. 1083 in village Siripur Majrahia. They obtained settlements of the lands from the deity Shri Radhakrishan Jee Baldeojee. The deity was the 16 annas proprietor of village Siripur Majrahia Pergana Jankahalpur, Tauzi No. 2794. The river Karey flows between this village and the villages of Kazi Dumra and Shankarpur. The contesting defendants were the landlords and tenants of villages Kazi Dumra and Shankarpur. The deity was defendant No. 18 and was represented by one Tantreshwar Singh. The plaintiffs claimed that in consequence of the changes in the Channel of the river Karey the lands in suit were lost to villages Kazi Dumra and Shankarpur by diluvion and were annexed to plot No. 1083 in village Siripur Majrahia by gradual increment and accretion. The Trial Court dismissed the suit. It held that (1) the suit lands did not accrete to plots Nos. 1083 and 1089 in village Siripur Majrahia due to slow, gradual and imperceptible changes in the channel of the river Karey, (2) there was no custom in the village by which the disputed lands became the property of the owner of plots, (3) the deity Radha Krishanji Baldeoji or the owner of village Sirpur Majrahia did not obtain possession of the lands in the manner alleged in the plaint, (4) the lands originally belonged to the proprietors of villages Kazi Dumra and Shankarpur and continued to be their property and (5) the plaintiffs failed to prove their title and possession in respect of the suit lands within 12 years before the date of the institution of the suit. The plaintiffs filed F. A. No. 291 of 1951 in the High Court of Patna against the decree passed by the Trial Court. The deity Shri Radha Krishanji Baldeoji, the original defendant No. 18 was impleaded as respondent No. 23 in the appeal. By an order dated January 24, 1952 the High Court appointed the Deputy Registrar as the guardian of the deity. On February 18, 1952 the High Court passed the following order:-

"Two weeks further time is allowed to deposit D. R. guardian s cost for respondent No. 23 (deity) failing which this appeal shall stand dismissed against him without further reference to a Bench."

This peremptory order was not complied with and on the expiry of the two weeks the appeal stood dismissed against the deity. At the hearing of the appeal the contesting defendants urged that the entire appeal became incompetent in view of the dismissal of the appeal against the deity. The High Court accepted this contention and dismissed the appeal in its entirety. The High Court held that there was a clear issue between defendant No. 18 and the contesting defendants as to whether the lands formed part of the village Siripur Majrahia, that the issue stood concluded against defendant No. 18 by the decree of the Trial Court, that the appeal had abated against defendant No. 18 and that as success in the appeal might lead to conflicting and inconsistent decrees, the appeal against all the defendants became incompetent. The present appeal has been filed by the plaintiffs after obtaining a certificate from the High Court.

2. Clearly, the High Court was in error in holding that the appeal had abated either wholly or in part. None of the parties to the appeal had died and there was no question of the abatement of the appeal. Mr. C. B. Agarwala relying on the case of Munni Bibi v. Trilokinath, 58 Ind App 158 submitted that the decision of the Trial Court on the question whether the suit lands appertainted to village Siripur Majrahia operated as res judicata between the deity and the contesting co-defendants, that the appellate court could not record an inconsistent finding that the suit lands appertained to village Siripur Majrahia, and that in the circumstances, the entire appeal