Imam, J.

1. This is an appeal against the decision of the . Additional Subordinate Judge of Gaya who decreed the suit of the plaintiffs on contest against defendants 6 and 7 and ex parte against the rest. He also ordered a preliminary decree for partition to be drawn up having declared the plaintiffs title to the properties in the suit. He further held that the plaintiffs were entitled to get mesne profits which would be ascertained in subsequent proceedings and that on plaintiffs petition a commissioner would be appointed to carve out a separate takhta of 6 annas 8 plea kham which is equivalent to 2 annas 8 pies pokhta out of 16 annas kham which is equivalent to 6 annas 10 pies pokhta of the mukarrari interest in tauzi Nos. 12443 and 12455. When the appeal was filed the appellants were Ramdhari Singh, appellant 1, who was defendant 6 in the Court below, and Kishundeo Tiwari, appellant 2, who was defendant 7 in the Court below.

2. A preliminary objection has been taken that the appeal has abated. Before I deal with the preliminary-objection it is necessary to state briefly what the case of the plaintiffs is.

3. The plaintiffs filed the suit for a declara tion of their title