JUDGMENT

Edgley, J. - In the suit out of which this appeal arises the plaintiffs sued the defendants for a declaration of their right of easement in respect of a certain pathway leading from their house in the direction of Maheswarpassa Main Road to the south. This pathway passed to the west of a certain tank belonging to the defendants and that path is said to have been obstructed by defendant 11 acting on behalf of the other defendants. The suit was dismissed by the Court of first instance and the plaintiffs thereupon appealed to the lower appellate Court where their appeal was contested by defendant 11. One of the points taken by the contesting defendant was that the appeal to the lower appellate Court was incompetent, because the appeal had abated as against the heirs of defendant 8. This being the case it was urged that, even if the plaintiffs succeeded in their appeal, any decree which they might obtain would be infructuous. This point however was decided in favour of the plaintiff-appellants and it was held by the learned Subordinate Judge that the appeal was not incompetent, The defendants have now come before this Court on second appeal.

2. The learned Advocate for the appel