A plaintiff in an ejectment suit must prove his title to the property in dispute.

Jamuar, J.

1. A preliminary objection was raised on behalf of the respondent in this appeal that the appeal had abated. The appeal was filed on 23rd January 1945, and the respondent was one Ram Babu. It appears that on 28th March 1947, Ram Babu executed a will leaving his entire estate to one Sailendra Kishore, his sisters daughters son, and appointing his father Nand Kishore Chand as the executor. Ram Babu died on 12 September 1947. On 10th October 1947, an application for probate of the will was filed. On 20th November 1947, an application was made in this Court for the substitution of Ram Babus widow, Mt. Annapurna Devi, in place of Ram Babu, and on 8th December 1947, another application was filed to add Sailendra Kishore as a party respondent under the guardianship of his father Nand Kishore Chand in addition to Mt. Annapurna Devi. In answer to the two petitions filed by the appellant for substitution, on 31st January 1918, Nand Kishore Chand filed an application informing the Court that he had been appointed the sole executor in the will of Ram Babu and thus he was the only legal representative and as he had not been brought on record till then, the appeal had abated. Notices were issued to Mt. Annapurna Devi and upon Sailendra Kishore. On 12th May 1948, probate of the will was granted. It then appears that on 16th October 1948, Mt. Annapurna Devi died, and on 14th December 1948, the appellant filed an application stating that he had come to learn that Nand Kishore Chand had obtained probate with a copy of the will annexe 1 from the Court of the District Judge, as exector, and hence in order to avoid future difficulties he had been advised to make the said Nand Kishore Chand, a party respondent and made a prayer to the affect that the name of Mt. Annapurna Devi be struck off and that the name of Nand Kishore Chand be added as a party respondent to the appeal. It was contended that in the circumstances as the appellant had failed to substitute Nand Kishore Chand, the executor, who was the only legal representative, within the prescribed period, his appeal should be held to have abated, and reliance was placed on the case of Devji Narayanji V/s. Ratanshi Hirji, A.I.R. (24) 1937 Pat. 612 : (172 I. C. 741). In that case the facts were that the suit had been filed by the appellant against three brothers. Before the trial bagan the Court was informed that the eldest of the three brothers named Keshabji had died and he was accordingly struck out from the suit. The trial Court ultimately dismissed the suit as against remaining two brothers. An appeal was preferred to the District Judge. In the course of the appeal the appellant informed the Oourt that the younger of the two surviving brothers named Nanji had died and made an application for the substitution of his widow as his heir. The Court ordered that the widow should be substituted. Later, the surviving brother Eatanshi filed a petition to the effect that he was joint with Nanji, that the widow was not the heir and that the real heirs were six surviving members of the joint family, namely, himself, his two minor sons, the two minor sons of the deceased and an adult nephew of the deceased. He claimed, therefore, that the appeal had abated for want of substitution, the period of ninety days having expired. Then the appellant filed an application for setting aside the abatement after substituting the persons named in the petition filed by Ratanshi. The District Judge rejected this application on the ground that the appellant had shown no sufficient cause for failing to substitute the legal heir within the statutory period and, therefore, he held that the appeal had abated as a whole. On a second appeal to this Court it was observed that although there did not appear that the appellant had any motive for applying to substitute a wrong person, but yet it had not been explained either before the District Judge or in this Court what reason he had for doing so. On the facts