JUDGMENT

Madeley, J - This is a second civil appeal by the plaintiff. There is a preliminary objection that the case having abated as regards Swami Dayal, one of the plaintiff-appellant's legal representatives (appellant having died), the appeal has abated as a whole. Swami Dayal was not made respondent by the other appellants. Ghamandi Lal v. Amir Begam, (1994) 16 All. 211 Haider Husain v. Abdul Ahad, (1908) 30 All. 117 Sher Pal Singh v. Mt. Aijaz Fatima, AIR1933All91 and Hafijul Hoque v. Altap. Hossain Molla, (1939) 43 O.W.N. 1088, have been cited by respondent's learned Counsel for this contention. In Tajammul Husain Khan v. Amiruddin, A.I.R. 1942 Oud 189 at p. 1245 Sher Pal Singh v. Mt. Aijaz Fatima, AIR1933All91 is quoted with approval:

The ruling in Haider Husain v. Abdul Ahad, (1908) 30 All. 117 was cited but we think that the case was distinguishable upon the facts as the suit was for the demolition of certain buildings. We think that the question of abatement must be considered with reference to the subject-matter of the suit. It was not possible to pass a decree for the demolition of a small portion of the building but there is no difficulty in giving a decree for a definite fraction of a sum of money. No clear authority has been shown to us for holding that the suit must be held to have abated entirely merely because all the heirs of one of the plaintiffs have not been brought on the record.

2. In that case a Mahomedan lady had died leaving sons and her husband. It was held that as their interests were separate, the omission of the husband from the appeal was not fatal to the interest of the sons. The appeal did not abate so far as they were concerned. In the present case we are dealing with separate Hindus. This is proved by the affidavit of Swami Dayal supporting his application under Section 5, and there is nothing on record to contradict him. The interests of these separate Hindus are separate and there is no reason why the abatement of the appeal in respect of Swami Dayal should cause the appeal to abate so far as the other heirs are concerned. The preliminary objection therefore fails.

3. The facts of the case are that there were three brothers, Sheo Ram, Hari Shankar and Bhola, and Ram Jiawan had a money decree against the first two. Numbers 1313 and 1314 were recorded in the name of these three brothers. Ram Jiawan alleged that these were groves, and in execution of his money decree he got them sold to the extent of two-thirds on 3rd July 1916. This share was purchased by Jangi, the plaintiff in this case. On 5th August 1916, a sale certificate was issued in favour of Jangi, and on 14th April 1919, he brought a suit for partition. On 22nd November 1919, a final decree was passed and the plaintiff got number 1314 and two trees in 1318. On 20th April 1920, he obtained "dakhal dehani" from the civil Court. Nevertheless the names of Hari Shankar and Bhola remained in the revenue papers and the plots were shown as tenancy of these two persons. In 1937 record operations took place and Jangi applied for correction of papers, and prayed that his name might be substituted in 1314 and over two trees in 1318, but this application was dismissed by the Assistant Record Officer on 16th September 1937; vide Ex. A-l. On 17th January 1938, Jangi filed the present suit for declaration and injunction before the Munsif. Jangi alleged that he was in possession and he asked for an injunction to prevent interference with his possession. Hari Shankar who is the only defendant pleaded adverse possession. On 30th April 1938, the learned Munsif dismissed the suit on the ground that the order of the Assistant Record Officer, Ex. A-l, prevented any interference by the civil Court. Other issues were decided in plaintiff's favour. In appeal the learned Civil Judge took the same view. Hence this second appeal. Section 44, U.P. Land Revenue Act, provides:

All entries in the annual registers made under Sub-section (3) of Section 33 shall be