LALIT MOHAN SHARMA, J.

1. This second appeal by the plaintiffs arises out of a suit filed for declaration of title and recovery of possession of 11 bighas 9 kathas and 7 dhurs of land of Jamabandi No. 16 and 1 bigha 14 kathas and 18 dhurs of land of Jamabandi No. 17 of village Amjora in Santhal Parganas.

2. According to the plaintiffs case in brief, Bhuto Singh left behind two sons Meghu Singh and Rito Singh. Rito Singh had a son Nanhku and a daughter Srimati Madhia Devi, Plaintiff No. 1, Munshi Singh, is the son of Nanhku Singh. Mostt. Madhia was married to Beni Singh who had two issues- a son Basuki and a daughter Mossamat Semri. Mossamat Semri was married to Bisho and had a daughter Radhia. Plaintiffs Nos. 2 and 3 are said to be the sons of Radhia. Meghu had a son named Suba whose son was Masudan. Defendant No. 1 Babulal and defendant No. 2 Jagdish Singh are the sons of Masudan. Defendants 3 to 6 are the sons of Babulal and defendant 7 and 8 are the sons of Jagdish. According to the further case of the plaintiff, the lands of Jamabandi No. 17 belonged to Nanhku who gave them to Mossamat Madhia. The land was recorded in the name of Basuki Singh. Basuki Singh also had other lands which he had inherited from a stranger named Mossamat Manawati. It is further said that Masudan who was the Pradhan of the village dishonestly got the names of Basuki, Babulal and Jagdish mentioned in the revenue papers. In 1937 Basuki is said to have died leaving behind his sister Samri as his sole heir. Samri came in possession and remained so till her lifetime. In 1952, there was a batwara in the larger family and the entire lands of Jamabandi No. 16, which was joint, fell to the share of Samri. Samri in this way became the owner of the entire lands involved in the present suit. On the 12th March 1954, Semri is said to have executed a will in favour of plaintiffs Nos. 1 to 4. Plaintiff No 4 is a stranger. In 1955 Semri died and the plaintiffs along with Radhia claimed exclusive possession of the land as against the defendants, who contested their claim. A proceeding under Sec.144 of the Code of Criminal Procedure was decided against the plaintiffs. The defendants cut away certain bamboo trees and a criminal case started against them also ended in their favour. Emboldened by these developments, the plaintiffs further plead, that the defendants effectively dispossessed them and, therefore, the suit had to be brought.

3. Defendant No. 4 was a minor and was represented by a guardian ad litem. The suit was contested by all the defendants. Their case is that Beni Singh, who is described in the plaint as the husband of Mossamat Madhia, was actually the second son of Suba. He could not have married Mossamat Madhia and the plaintiffs case is untrue. He was a brother of Masudan Singh Baski and Mossamat Samri, the son and daughter of Beni Singh were the first cousins of defendants 1 and 2. It is said that on their death the defendants were the heirs and got the property. They claimed to be in possession on the strength of the title.

4. The trial Court accepted the case and the evidence of the plaintiffs rejected those of the defence and decreed the suit. The defendants appealed. In October, 1968 when the appeal was pending, defendant No. 4 died, admittedly leaving behind his mother, as his sole heir. No step for substitution was taken and the appeal was heard in that state. The learned lower appellate Court took a view different than that of the trial Court, reversed the decree and dismissed the suit. The plaintiffs have appealed.

5. This appeal was initially heard by me singly. On behalf of the appellants, it was contended that the appeal abated in so far as the heir of defendant No. 4 is concerned in the court of appeal below and having regard to the circumstances of the case, the entire appeal became incompetent and could not have been allowed by the court below. I directed that the appeal should be heard by a Division Bench. In these circumstance