JUDGMENT:- This appeal by the plaintiff arises out of a suit for possession over the property in dispute. The plaintiff alleged that he had a grove of 18 bighas and was Bhumidhar thereof. Trees were planted in that grove with the permission of the zamindar before 30-6-1962. The house in dispute is located inside that grove as shown in the site plan by letters ABCD Cha Chha Ja Jha. The plaintiff gave this house to the defendants about ten years before the institution of the present suit for looking after the aforesaid grove. After some time the defendants left the service of the plaintiff whereupon they were asked to vacate the said house, but they failed to do so, hence the suit for their ejectment.

2. The suit was contested by defendant No. 1 on the grounds inter alia that the house in dispute was constructed by his grandfather and he was the owner thereof, and that it did not lie in the plaintiff's grove.

3. The trial court found that the house in dispute did not lie in the plaintiff's grove. It also held that the house had been constructed by the defendants' grandfather. The plaintiff having no right, title or interest in the house in suit was not entitled to seek possession thereof. On these findings the suit was dismissed. Against that decision the plaintiff preferred an appeal. The appellate court below allowed that appeal and remanded the suit for retrial. The trial court after retrial of the suit decreed it and granted a month's time to the defendants to vacate the said house. The trial court on rehearin the suit had found that the house in question did lie in the plaintiff's grove and that the same was built by the plaintiff. It further found that the defendants' possession over that house was that of licensees which stood revoked; hence they were liable to be ejected. Against that decision the defendants preferred an appeal before the District Judge. The appeal was heard and decided by Civil and Sessions Judge, Faizabad.

4. On an appraisal of the evidence the appellate court below found that the plaintiff had not led satisfactory evidence to show that he had got the house constructed, rather it was established that the house in dispute was got constructed by the grandfather of Dukhi, defendant. It also found that it was not given to the defendant in the year 1952 as alleged; that the defendants would be the owners of the said house even under Section 9,U. P. Zamindari Abolition and Land Reforms Act; that the plaintiff was not in possession over the house in dispute for a long time and if he had any right in the said house that right had extinguished by lapse of time. On these findings the appeal was allowed and the suit of the plaintiff was dismissed. The plaintiff having died his legal heirs have preferred this appeal.

5. For the appellant it was urged that Reg. Civil Appeal No. 45 of 1967 out of which second appeal has arisen was filed against Dr. Narsingh Dayal, the plaintiff who was dead on that date. Dr. Narsingh Dayal died on 29-1-67 whereas Reg. Civil Appeal No. 45 of 1967 was filed on 6-2-67. The submission, therefore, was that appeal No. 45 of 1967 having been filed against a dead person was a nullity and the appellate court below had no jurisdiction to entertain and decide it.

6. It appears that an application was moved before the court below for substituting the legal representatives of deceased Dr. Narsingh Dayal as respondents in the appeal. That application was allowed by an order dated 13-11-67. A perusal of that order discloses that the appellate court below gave benefit of Section 5 of the Limitation Act to the appellants and treated the appeal to have been filed on the date the order was passed i.e. 13-11-67. Learned counsel for the appellants before me has urged that it was not open to the appellate Court below to give benefit of Section 5 of the Limitation Act to the defendant-appellants in that appeal and to entertain an application for substitution of the legal heirs of the deceased plaintiff. If the