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- fe