In a suit for declaration of title and injunction against trespassers, the death of one defendant and the non-substitution of his legal representatives does not lead to the abatement of the suit in its entirety.

D. P. MOHAPATRA, J.

( 1 ) THE short question that arises for consideration in this revision petition is whether in the facts and circumstances of the case the court below was right in holding that the suit abated in its entirety for non-substitution of the legal representatives of the deceased defendant No. 1. Dhruba Charan Padhan.

( 2 ) NARSINGH Sahu, father of petitioner No. 1 and Bhikari Chraran Sahu, petitioner No. 2 filed Title Suit No. 12 of 1973 in the Court of the Subordinate Judge, Nayagarh impleading Dhruba Charan Padhan as defendant No. 1, and opposite parties 2 to 14 as defendants 2 to 14. The plaintiffs prayed for declaring their title over the suit land; to permanently injunct defendants 1 to 14 from entering upon the suit lands and from disturbing possession of the plaintiff over the same. The gist of the plaintiffs' case set out in the plaint is that Khata Nos. 1 and 199 of village Gopinathpur initially belonged to two brothers, Raghu Sahu and Madhu Sahu, who were in separate possession of their respective shares. After the death of Raghu Sahu, his brother Madhu Sahu possessed his properties. On the death of Madhu Sahu in 1941, Chakradhar Sahu an outsider falsely claimed the properties of Madhu Sahu and Raghu Sahu as their heir. At that time Lokanath Sahu, the father of the plaintiffs in order to save the properties possessed the properties with consent of the landlord. He filed Title Suit No. 75 of 1950 and being unsuccessful in the trial court, filed Title Appeal No. 15 17/23 of 1955/54. In the appeal the learned District Judge declared that Chakradhar Sahu was not entitled to the properties of Madhu and Raghu as their heir. Thereafter at the instance of Chakradhar Sahu a proceeding under S. 145, Cr. P. C. (Cri. Misc. Case No. 167 of 1963) was initiated. In the revision arising out of the said proceeding, this Court declared possession of the plaintiffs father, Lokanath Sahu and in pursuance of the said decision possession of the suit properties was delivered to plaintiffs' father on 21-5-1966. Since then Lokanath Sahu and after his death, the plaintiffs have been in possession of the suit properties. According to the plaintiffs, these defendants have been creating trouble regarding plaintiffs' possession of the suit land though they have no manner of interest or possession over the said property. The defendants 1 to 14 in their joint written statement refuted the stand taken by the plaintiffs: denied their claim of exclusive title to the suit land asserted inter alia, that at the time of filing of the previous suit in 1950, the plaintiffs' father

was not in possession of any portion of the suit lands. The defendant claimed to be bhag tenants of defendants 2 to 7 of the earlier suit and further claimed to be in cultivating possession of different parcels of the suit land as described in the schedules A and B to the written statement. They asserted that in some years Bhag pattas have been granted to them by the landlords.

( 3 ) WHILE the suit was pending in the trial Court, defendant No. 1, Dhruba Charan Padhan died. Admittedly his legal representatives were not substituted in the case. The plaintiff. No. 1. Narsingh Sahu also died during pendency of the suit and his legal representatives were substituted. Objection appears to have been taken to maintainability of the legal representatives of the deceased defendant. Dhruba Charan Padhan. In reply it was contended on behalf of the plaintiffs that the suit may be taken to have abated against deceased defendant No. 1 but that does not affect maintainability of the entire suit. The trial court on consideration of the matter upheld the objection and held that the suit abated in toto.

( 4 ) THE contentions noticed above were reiterated by the learned counsel appearing for the respective parties at the hearing of this case.

( 5 ) FROM the provisions under O. 22. Rule 4. C. P. C. and those in O. 1 R. 9 C. P. C. it is clear that where one out of the several detenda