Plaintiff in a suit for declaration and possession having lost in the trial Court and on appeal partially succeeded, has preferred this second appeal which was admitted by this Court on the following substantial question of law:-

"Whether, on the facts and in the circumstances of the case, the appellant-plaintiff is entitled to be given a decree for joint possession to the extent of the share of the respondent No.1 Mst. Sugrabi in the land forming the subject matter of the registered sale-deed dated 17.6.1963"

During pendency of the appeal, respondents No.2, 3 and 6 died. The appellant moved an application on 1.12.92 for deleting the names of respondents No.2, 3 and 6 from the array of the respondents on 4.2.93 the application was allowed at the risk of the appellant, and accordingly, the names of the respondents No.2, 3 and 6 were deleted.

At the outset, Shri R.D. Jain, learned counsel for the respondents, raised a preliminary objection that the appellant is a transferee of the suit land, area 28 bighas 5 biswas, situated in villages of Mahobi and Basrod, vide registered sale-deed dated 17.6.1963 (Ex. P 1) executed by respondent No.1 and one Kamarkhan for a consideration of Rs. 2,000/-. After execution of the sale-deed (Ex. P1), Kamarkhan who was minor at the time of execution of the sale-deed, died in the year 1964 and all the respondents/defendants became his heirs, who are holding the land as tenants in common. The first appellate Court has passed a joint decree, as the names of respondents No.2, 3 and 6 have been ordered to be deleted and their legal representatives have not been brought on record; the decree passed by the first appellate Court has become final, as the decree is inseparable. Reliance was placed on three decisions of the Supreme Court in cases in State of Punjab v. Natllu Ram, AIR 1962 SC 89; Union of India v. Shree Ram Bohra and others, AIR 1965 SC 1531; and Babu Sukhram Singh v. Ram Autar Singh and others, AIR 1973 SC 204. Shri R.A. Roman, learned counsel for the appellant, to meet this preliminary objection about the survival of the appeal submitted that even if the decree being joint and inseparable because of the deletion of the names has become final, but still the appellant is entitled to the land to the extent to the share of Sugrabi, which she transferred jointly with Kamarkhan vide registered sale-deed dated 17.6.63 (Ex. PI); the first appellate Court in spite of granting a declaration dismissed the suit for possession. This part of the decree cat) still be challenged, as the Court after giving declaration, instead of dismissing the suit of the plaintiff, ought to have directed for partition and possession of the specific share of Sugrabi in accordance with section 178 of the M.P. Land Revenue Code.

After hearing counsel on both sides, I am of the opinion that this appeal now in the changed circumstances and because of the death of three respondents need not be dealt on the substantial question so framed, as the decree passed by the first appellate Court has become final because of the death of the three respondents. Though in the decree the declaration was granted in favour of the appellant that the plaintiff is entitled to the land to the extent of the share of Sugrabi, while granting decree no decree for partition and possession was ordered. As the decree having become final and the Court, which passed the decree, ought to have passed the decree after giving a declaration for getting partition through the Tehsil Court under section 178 (even if the appellate Court has not said so), the appellant/decree-holder can execute the decree for possession of the specific share of Sugrabi.

As regards refund of half of the amount of Rs. 2,000/-, Shri R.D. Jain submitted that he has no objection and the heirs of Kamarkhan shall pay the amount of Rs. 1,000/-.

Therefore, the appeal is partly allowed and the decree passed by the first appellate Court is modified to the extent that the

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