A.N.GROVER, J.

(1) -THIS is a plaintiffs appeal by special leave from a judgment of the orissa High court dismissing a suit for recovery of possession of lands described in the schedule attached to the plaint and for mesne profits on the ground of abatement.

(2) THE plaintiff had impleaded nine defendants. Defendants 1 to 4 were members of a joint Hindu family, defendant No. 1 being the father of defendant Nos. 2 to 4. Out of them defendant No. 4 did not appear and contest the suit. Defendant Nos. 1 to 3 claimed to be the owners of properties shown in Lot I in the schedule. Defendant Nos. 5 and 6 claimed one item out of Lot 1. Defendant No. 9 claimed the properties in Lots 2 and 3 in the schedule. Defendant Nos. 7 and 8 ultimately entered into a compromise. During the pendency of the suit the 4th defendant died on 25/06/1958. On 25/08/1958 the plaintiff filed a memorandum in the following terms:

"DEFENDANTS 1 to 4 are members of a joint family. The 1st defen- dant is the father and defendants 2 to 4 are his sons. "Defendant No. 4 Kasinath Panda died and defendants 1 to 3 are his L. Rs."

An application was filed on 26/08/1958 that Kasinath Panda de- fendant No. 4 who had died left two minor sons Surendra Panda and Janannath Panda and a widow Dossi Pandiani who were all members of a joint Hindu Family along with defendants 1 to 3. It was stated that as these legal representatives had not trespassed on the suit lands it was not necessary to implead them in the suit. Defendant Nos. 1 to 3 were the legal representatives who were already on the record. It was further averred that the provisions of the Hindu Succession Act did not apply and the suit could proceed in the absence of the widow and the minor sons of the deceased. The trial Judge passed an order striking off the name of defends ant No. 4/08/1958. Defendant No. 1also died on October I, 1958. Defendant Nos. 2 and 3 filed a memorandum that they were his legal representatives. His name was consequently struck off. After framing the necessary issues and recording the evidence of the parties the Trial Judge believed the version of the plaintiff that the defendants had trespassed upon the suit lands and decreed the suit on 5/05/1959 against defendants 2, 3, 5 and 9 and dismissed the suit as against defendants 7 and 8 owing to a compromise having been entered into by them.

(3) THE contesting defendant preferred an appeal to the Additional Subordinate Judge in which one of the contentions raised was that the suit had abated as the legal representatives of the 4th defendant had not been impleaded in his place. This contention was negatived on the ground that the suit was for recovery of possession from the trespassers had died during the pendency of the suit, the plaintiff could be granted relief against the remaining trespassers. On the merits also the learned Additional Subor- dinate Judge affirmed the decision of the trial Judge.

(4) THE unsuccessful defendent Nos. 2, 3, 6 and. 9 filed an appeal to the High court. The sole point on which the appeal succeeded was of abatement of the suit owing to the death of defendant No. 4 and the non- impleadment of his legal, representatives, namely, his widow and two minor sons. The view of the High court was that where a suit was based upon a joint and indivisible act of trespassers there was no question of several liability. On the cause of action a joint and indivisible decree would follow and if the decree was a nullity as against one defendant it must be taken to be a nullity against all the defendants. Moreover it was essential under the law to join all the trespassers known to be in possession on the date of the suit as necessary parties. The argument that there would be no total abate- ment because the suit property was in three lots was not accepted.

(5) WITH all respect due to the learned Judges of the High court it is not possible to appreciate how the suit could be dismissed whe