O. 22, R. 4 (4), C. P. C. has no application to appeals.

S. K. MOHANTY, J.

( 1 ) THIS appeal by defendant No. 1 (State of Orissa) arises out of a reversing decree passed by the District Judge, Kalahandi. The suit properties are 4 tanks. Plaintiffs (14 in number) are the grandsons and great grandsons of one Biri Gountia who was gountia of village Kandulubandh within Junagarh P. S. in the district of Kalahandi. He excavated the 4 tanks between the years 1890 and 1917.

( 2 ) PLAINTIFFS sued the State of Orissa praying for declaration of title, confirmation of possession, in the alternative recovery of possession, of the aforesaid tanks, permanent injunction in respect thereof and damages amounting to Rs. 625/ -. Subsequent to filing of the suit on the prayer of defendant No. 1 and defendants 3 to 11, they were impleaded as defendants.

( 3 ) PLAINTIFFS's case, in brief was that Biri Gountia excavated the 4 tanks spending his own money on his own land and was enjoying the fish and water thereof during his lifetime, which is being continued by his grandsons and great grandsons including plaintiffs. In the current settlement record-of-rights, the tanks have been wrongly recorded in the name of the State of Orissa and they illegally leased out the tanks to the public in the year 1973-74. Therefore the plaintiffs commenced the action praying for aforesaid reliefs after complying Section 80 of the Code of Civil Procedure.

( 4 ) DEFENDANT No. 1, State of Orissa, in their written statement denied plaintiffs' title and contended that the tanks were on lands belonging to the State of Kalanhandi and were in possession of the Gountia on behalf of the State as per the terms of Kabuliyat.

( 5 ) DEFENDANT No. 2 in his written statement denied plaintiffs' title to the suit tanks and claimed right to take water from one of the suit tanks to his lands for irrigation purpose. Defendants 3 to 11 while adopting the written statements filed by defendants 1 and 2 also claimed right to take water to their respective lands for irrigation purpose.

( 6 ) THE learned trial Court came to find that Biri Gountia only improved the tanks on the Bhogra lands belonging to ex-State of Kalahandi, and that the tanks were excavated by him on Government land in his official capacity as Gountia while discharging his obligation to the State. On such finding, plaintiffs'claim for declaration of title was negatived. On the issue relating to rights of defendants 2 to 11 to irrigate their lands from the tanks in question, the learned trial Court held that defendant No. 2 alone has the right to take water and the claim of other defendants 3 to 11 cannot be upheld because there is no evidence on their behalf and they have not contested the suit.

( 7 ) ON the finding that the suit tanks were the private properties of the Gountia, the learned District Judge has allowed the plaintiffs' appeal thereby decreeing plaintiffs' suit for title, possession and injunction. As to the claim of defendant No. 2 to take water from the tanks to his lands, he has held that this being beyond the scope of the suit, his right thereon cannot be decided and if any such right exists, it would be attached to the tanks.

( 8 ) MISS Ghose for the appellant attacked the appellate judgment on two grounds: firstly, she argued that Lingaraj Goud, who was shown as respondent No. 18 in the second appeal was respondent No. 6 in the Title Appeal and defendant No. 6 in the Original suit. He died in February, 1982 during pendency of the Title Appeal, which was disposed of in October, 1983. In the circumstances, the Title Appeal abated as a whole and the trial court decree has become final. The second ground of attack was that the plaintiffs have signally failed to prove their title to the suit tanks. Mr. Mukherjee for respondent No. 15 (defendant No. 2) supported the argument from the side of the appellant. Counsel for the plaintiffs did not dispute the fact of death of Lingaraj Goud during pendency of the Title Appeal. He, however, contended that Order 12, Rule 4