In a suit against trespassers who have formed a 'combination' and whose shares in the suit land are not ascertained or ascertainable, the death of one of the trespasser-defendants during the pendency of the appeal and the consequent abatement of the appeal against him leads to total abatement of the appeal, as it may result in two inconsistent and contradictory decrees.

S. BARMAN, J.

( 1 ) THE defendants are the appellants before us. In May 1950, the plaintiffs filed a suit against the defendants alleging that they were trespas ers on the suit land. In september, 1951, there was a decree for ejectment of the defendants. Against the said decree, seven defendants appealed. During the pendency of the appeal one of the defendants being defendant No. 6 Chintamani Paital, died leaving him surviving his heirs and legal representatives. Admittedly, there was no substitution of the deceased's heirs and legal representatives.

( 2 ) THE only question for consideration on these facts, briefly stated above, is whether it was a case of partial or total abatement.

( 3 ) IT appears from the frame of the suit, as in the plaint, that it was a suit for declaration of the plaintiff's title. The prayers in paragraph 10 of the plaint are as follows:

" (a) that it be declared that the plaintiff No. 1 through the trustees plaintiffs Nos. 2 to 4 has title to the suit lands and that the defendants have no title or interest in it; (b) that the plaintiffs may be ordered to get delivery of possession of the suit lands through court; (c) that the plaintiffs may be ordered to get a decree for mesne profits against the defendants; (d) that the plaintiffs may be ordered to get the costs of the suit from defendants; (e) that the plaintiffs may be ordered to get any other relief which the court thinks proper in the circumstances of the case. " furthermore, paragraph 6 of the plaint shows that the defendants had formed a combination. For ready reference I quote here paragraph 6 which is as follows: "that the plaintiffs after taking delivery of possession let out the suit lands to their tenants, but the defendants who have formed a combination at the instance of the outgoing marfatdar did not allow the Bhag tenants to cultivate the lands and have been in forcible possession of the suit lands as trespassers. " For the present purpose these facts are sufficient to deal with the appeal before us.

( 4 ) ON these materials the learned Munsif decreed the suit against the defendants and declared the plaintiffs' title to the said suit lands and ordered that the plaintiffs do recover possession of the same from the defendants. The defendants appealed to the District Judge being Appeal No. 252 of 1951. During the pendency of the appeal defendant No. 6, Chintamani Paital died. One Kshetrabasi Paital, describing himself as Chintamani's son, filed a petition on 31- 7-1952 for substituting himself, falsely alleging that Chintamani died on 14-6-1952. The plaintiffs-respondents, when they came to know of the petition, made an application on 6-10-1952 for recalling the order of substitution as Chintamani, in fact, died in December 1951. The Appellants did not appear at the hearing of the application for recalling the order of substitution and the matter was heard ex parte and the order substituting Kshetrabasi Paital was vacated. At the hearing of that appeal a preliminary objection was taken on behalf ot the plaintiffs-respondents that the entire appeal abated as one of the defendants-appellants was not on record and the application for substitution was disallowed in the circumstances aforesaid. The defendants-appellants contended that the entire appeal did not abate and that if it abated, it abated partially to the extent of the share of the defendant-appellant No. 6 Chintamani Paital alone.

( 5 ) IT is clear from the pleading that the defeandants-appellants were sued as trespassers, alleged to have no right to the suit lands and it as alleged that they forcibly took possession. In the written statement, the defendants did not state that each of the defendants possessed separate piece of land, but they only alleged that they were in possession of the suit lands as Bhag tenants for over twenty years. It was, for the defendants to prove whether they possessed the lands jointly or separately but they did not say either in the written statemen