( 1 ) THIS appeal is by four of the appellants in R. A. 181 /1967 on the file of the Civil Judge at Bijapur. There was another appellant in the case; he was arrayed as 4th defentant in the trial Court and 4th appellant in the court of first appeal. That appeal had been preferred against the judgment and decree made by the Munsiff, Jamkhandi, in C. S. 367/1965. Since the 4th appellant in the Court below died during the pendency of the appeal and his legal representatives were not brought on record, the learned civil Judge held that the cause of action was against all the appellants jointly and therefore the appeal abated as a whole even in regard to the other surviving appellants in the case. Hence, this appeal.

( 2 ) IN order to examine the correctness or otherwise of the conclusion of the Court below, it is necessary to remind ourselves as to the tests to be applied in a case of this nature For this purpose, it is sufficient to refer to the enunciation of the Supreme Court in State of Punjab v. Nathu ram, AIR. 1962 SC. 89. The enunciation reads thus :" The test to determine this has been described in diverse forms. Courts will not proceed with an appeal (a) when the success of the appeal may lead to the Court's coming to a decision which will be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the Court's passing a decree which had become final with respect to the same subject matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary reliefs against those respondents alone who are still before the Court; and (c) when the decree against the surviving respondents, if the appeal succeeds, will be ineffective, that is to say, it could not be successfully executed. "

( 3 ) IT seems to me that none of the elements referred to in the above enunciation are present in the case. It is seen from the plaint filed in the suit (vide para 3) that each of the appellants had trespassed only on a portion touching his own property, by putting up a fence. It is, therefore, clear that the acts of the appellants do not constitute joint trespass by all of them together. Each of the appellants, therefore, has been clearly imputed with an act of trespass distinct and separate from each other, in respect of the portion adjoining their respective separate premises. In this view of the matter, the judgment in appeal cannot be upheld.

( 4 ) THE result, therefore, is that this appeal succeeds and is accordingly allowed. The judgment and decree of the learned Civil Judge, Bijpur, in R. A. 181/1967 are hereby set aside. The matter will, however, stand remitted to that Court for a fresh disposal in accordance with law. It is to be noted that the appeal in regard to the deceased 4th defendant will, however, stand abated. In the circumstances, there will be no order as to costs.

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