An appeal abates in toto if the decree under appeal is joint and indivisible and success of the appeal may lead to conflicting and contradictory decrees with respect to the same subject-matter between the deceased defendants and the surviving defendants.

R. K. PATRA, J.

( 1 ) DEFENDANTS 1 to 5, the legal representatives of deceased defendant No. 6 and defendants 7 to 25 have filed this appeal against the judgment and decree of the learned Subordinate Judge, Athgarh declaring plaintiff respondent No. 1's right, title interest and possession in respect of the suit land, permanently restraining the appellants as well as defendant No. 26-respondent No. 2 from going upon the land or from interfering with the possession and enjoyment of respondent No. 1 and declaring entitlement of respondent No. 1's right to get the seized paddy valued at Rs. 1000/ - in G. R. Case No. 88 of 1972.

( 2 ) THE case of respondent No. 1 hereinafter referred to as 'the plaintiff' is that he is the owner in possession of the suit land comprising of an area of Ac. 1. 60 decimals out of total area of Ac. 20. 50 decimals under plot No. 460 appertaining to khata No. 4 situated in mouza Deuli. According to him, in a proceeding in O. L. R. Case No. 98 of 1976 under section 36-A of the Orissa Land Reforms Act, 1960, he was granted certificate in respect of the suit land by the order of the Revenue Officer dated 24-12-1977. Pursuant to the said order, he duly paid the compensation amount to the respondent No. 2 who was a party to the said O. L. R. case and under whom he was a bhag tenant prior to the initiation of the proceedings. The State Government have also recognised him as a raiyat in respect of the suit land. Although the defendants had no semblance of right, title, interest and / or possession over the suit land, they created trouble in his enjoyment and possession over the suit land. Due to such mischief committed by the defendants, on the basis of report submitted by the plaintiff, G. R. Case No. 88 of 1977 was initiated against the defendants. The said case, however, ended in acquittal. Being emboldened by the order of acquittal, they again started troubling him in the enjoyment and possession of the suit land. In the premises, the plaintiff filed the suit claiming aforesaid reliefs. Defendants 1 to 25 filed joint written statement totally denying the allegations made by the plaintiff. Their case is that the suit land originally belonged to the ex-ruler of Baramba. Suit land was ceiling surplus land which consequently vested in the Government and they are in possession of the same. Defendant No. 26 (respondent No. 2) did not choose to contest the suit as a result of which he was set ex parte. On behalf of the plaintiff, six witnesses were examined in support of his case. The contesting defendants examined two witnesses on their behalf. Both parties filed number of documents in support of their respective stand. On the basis of the evidence adduced in the case, the learned trial Judge decreed the suit holding the plaintiff's right, title and interest in respect of the suit land. He has also held that the defendants are not at all in possession of the suit land.

( 3 ) ON 7-11-1988 a memo was filed on behalf of the plaintiff saying that on account of the death of appellants 1, 15, 16, 19 and 24 during the period from 1984 to 1986, this appeal has abated as a whole, the decree being joint and indivisible. This Court on 14-12-1988 passed order on the said memo observing that it would be considered at the time of hearing of the appeal.

( 4 ) WHEN this appeal was taken up for hearing, Shri Mohanty, learned counsel for the appellants, submitted that the appeal does not abate as a whole, inasmuch as the appellants were alleged to have been in possession of specific portion of the suit land. In support of this contention, he drew my attention to paragraph 13 of the plaint wherein the plaintiff has referred to some O. L. R. cases in which certain specified defendants were shown as parties. According to the learned counsel, mention of different defendants in respect of different cases would show that the allegation of the plaintiff is specific against those defendants in respect of specific portion of the suit l