The main legal point established in the given judgment is that the entire appeal does not abate and should be decided on merits and in accordance with law.

Balakrishna Menon, J.

1. The plaintiff in O. S. No. 165 of 1970 on the file of the Munsiff's Court, Kanjirappally is the appellant. The suit is for a declaration that Ext. P6 sale deed dated 23-6-1961 in the name of the 1st defendant is benami for the plaintiff and that he is the owner of the property in possession of the same Defendants 2 and 3 are said to be in occupation of a portion of the building in the property as tenants under the plaintiff. The suit was later amended and a claim for recovery of possession of one room in the building is also added on the allegation that the defendants 1 and 4 to 6 trespassed into the house in the property and occupied one room on 11-12-1972. The suit property is 5 cents of land with a building thereon. Two separate portions of the building are admittedly in the occupation of defendants 2 and 3 and their occupation according to the plaintiff is as tenants under him Defendants 4 to 6 are the wife and children of the 1st defendant. They were impleaded in the suit on account of the alleged trespass on 11-12-1972. The suit was contested by the Ist defendant. He denied the plea of benami set up by the plaintiff and contended that the property belongs to him as per Ext. P6 sale deed in his favour, that defendants 2 and 3 are in occupation on permission granted by him, that he is in possession of the remaining extent of the property and he is staying in the house with his wife and children who were subsequently impleaded as defendants 4 to 6. The 4th defendant filed a written statement setting up title in her husband the 1st defendant as per Ext. P6 sale deed in his favour and contended that she is residing with her husband in the house in the suit property. Even though a written statement was filed by the 4th defendant, defendants 2, 3 4 and 6 remained ex parte. Issue (1) in the suit was whether the plaint properties were acquired in the name of the Ist defendant for and on behalf of the plaintiff. The trial court on this issue found that the benami alleged is not proved and that the plaintiff has not proved that Ext. P6 sale deed in the name of the 1st defendant is for his benefit. Additional issue No. 6 in the suit was whether defendants 1, 4, 5 and 6 have trespassed into one room in the suit building as alleged in the plaint. On this issue it was found as follows:-

"In view of my finding on the foregoing issues it follows that the story of trespass alleged to be committed by the 1st defendant into a room of the plaint building subsequent to the suit is false. The 1st defendant being in possession of the suit property under valid title under Ext. P6, he is not liable to be evicted. As such, the question of mesne profits does not arise. Issues 6, 7 and 8 are found against the plaintiff."

On issue 2, it was found that the plaintiff has no possession of the suit property and that the 1st defendant is in possession. On these findings, the suit was dismissed by the trial court. Against this, the plaintiff preferred A. S. No. 165 of 1971, Sub Court, Kottayam. Pending appeal, the 4th defendant died. Thereupon the plaintiff appellant filed a petition I.A. No. 287 of 1974 stating that there is no need to implead the legal representatives of the deceased 4th respondent in the appeal. This petition was merely recorded by the lower appellate court. The appeal was thereafter dismissed by judgment dated 30-6-1975 holding that on account of the death of the 4th respondent, the appeal abates as against the 4th respondent and for that reason it cannot be proceeded with even as against the other respondents who are defendants 1 to 3, 5 and 6. The Second Appeal is by the plaintiff against this decision of the lower appellate court dismissing the appeal on the preliminary point that it cannot be proceeded with on account of the abatement of the appeal against the 4th respondent.

2. The learned Counsel for the appellant strongly urges that the 4th respondent in the appeal was only a pro forma party. She had