Raj Kishore Prasad, J.

1. The present appeal from the preliminary decree for partition is by defendants 1 to 35(a), who were defendants first party to the suit.

2. The appeal arises out of a suit brought by the plaintiffs respondents for declaration of their title to and confirmation of possession over some and recovery of possession of the remaining disputed lands and for partition. The suit has been decreed, and, the plaintiffs have been granted a decree for possession, and, a preliminary decree for partition has also been passed.

3. In the suit, the competition was between two settlees. The plaintiffs claimed settlement of the disputed lands from 15 annas landlords, whereas, the defendants-appellants claimed settlement of the self same lands from the 16 annas landlords.

4. During the pendency of the present appeal in this Court, appellant 13, Rambirit Rai, who was defendant 10 in the Court below, died. On 23-7-58, the respondents filed an application stating that appellant 13 died on 22-1-57, leaving behind three sons and three grandsons from a deceased sou, who were all members of his joint family, but, no substitution petition had been filed for substituting the legal