JUDGMENT

1. This second appeal has arisen out; of a suit for possession of 266 kanals 11 marlas of land situate at Mauza Shadia. Originally there was a Mauza which went by the name of Wan Bhuchran. In the Second Settlement it was divided into three mauzas, namely, (1) Wan Bhuchran, (2) Shadia and (3) Chorwala. Defendants Nos. 1 to 4, according to the plaint, held 1/4th share in the land specified in paragraph 1 of the plaint and their share came to 925 kanals 8 marlas. The remaining 3/4ths of the land belonged to defendants Nos. 5 to 7. The father of defendants Nos. 1 to 4 sold the shamilat land appertaining to his share to plaintiff No. 1 and his two sons, Hem Raj and Gela Ram, plaintiffs Nos. 2 and 3 respectively, under three sale-deeds executed in the year 1900. One hundred and eighty kanals were sold to plaintiff No. 1 for Rs. 99-8-0. The same area was sold to Hem Raj for the same price under a separate sale-deed. In August, 1900, 190 kanals were sold to Gela Ram for Rs. 99.

2. In 1878 the khewat lands belonging to all the defendants Nos. 1 to 7 were in possession of defendants Nos. 8 to 14. Both sets of defendants, therefore instituted suits against defendants Nos. 8 to 14 foe the recovery of the shares in the land and succeeded in getting decrees. The land, however, continued to be recorded in the revenue papers in the names of defendants Nos. 8 to 14 as the change brought about by the decrees was not given effect to in the Record of-Rights.

3. In the years 1905 and 1906 partition proceedings in respect of the shamilat lands were commenced. On the 10th of September, 1906, the Settlement Revenue Assistant, when preparing the mode of partition, ordered that " in the case of decrees in accordance with the opinion of the Settlement Tahsildar, the decree-holders shall be given share of the shamilat,"

4. It was further laid down by him in the mode of partition that for each kanal of khewat land a share-holder would be entitled to get 9 marlas, 6 sarsahis of the common land. According to this calculation 487 kanals 11 marlas of the shamilat land were due to defendants Nos. 1 to 4, but only 224 kanals were allotted in respect of their share. The plaintiffs, who had purchased the shamilat lands appertaining to the share of defendants Nos. 1 to 4, instituted the suit on the allegation that, inasmuch as the land of defendants Nos. 1 to 4 was recorded in the names of defendants Nos. 8 to 14, 266 kanals 11 marlas of land being the difference between 487 kanals, 11 marlas and 221 kanals were included in the shares of defendants Nos. 8 to 14, and prayed that a decree for possession in respect of the said land be passed in their favour against defendants Nos. 8 to 14.

5. The suit was resisted on various grounds one of which being that it was not cognizable by the Civil Court.

6. The Court of first instance dismissed the suit, holding that the plaintiffs had not succeeded in proving that 226 kanals 11 marlas of land claimed by them had been allotted to defendants Nos. 8 to 14 and was in their possession.

7. Only one of the plaintiffs, namely, Howana Ram, appealed from the whole decree and the lower Appellate Court reversed the decree in favour of all plaintiffs.

8. Against the appellate decree the present appeal was preferred by the defendants-appellants, impleading the three plaintiffs, Howana Ram, Hem Rej and Gela Ram, as respondents. On the 2nd of December, 1919 an application was made by the appellants stating that Gela Ram, one of the respondents, had died and prayed for the substitution of the names of the heirs of Gela Ram.

9. This application was granted subject to all just exceptions. When the second appeal came on for hearing Mr. Ram Chand Manchanda, Counsel for the respondents, raised a preliminary objection to the hearing of the appeal on the ground that Gela Ram had died in October, 1917, during the pendency of the appeal before the lower Appellate Court and as no application for the substitution of the names of his heirs had been ma