JUDGMENT

SAWANT, J. - The suit was filed by 56 members of the public claiming declaration of customary right to bury the dead in the land R.S. No. 975/1 admeasuring 2 acres and 38 gunthas and R.S. No. 975/2 admeasuring 5 acres, against 15 original defendants. Defendants 1 to 3 to the suit were brother-owners of the land. The owner-defendants sold portions of the suit land and defendants 4 to 15 are the purchasers of the said portions. Both the owners and the vendees were joined as defendants to the suit as they denied the plaintiffs customary right to bury the dead in the land. In the suit, a permanent injunction restraining the defendants from obstructing the plaintiffs in the exercise of their said right, was also claimed.

2. The evidence disclosed that defendant 1 claimed interest in R.S. No. 975/1, defendant 2 in R.S. No. 975/2 and defendant 3 claimed no interest in either of the pieces of land. Defendants 1 and 2 opposed the reliefs claimed by the plaintiffs contending that the suit land was not a burial ground and that the Municipality had provided sufficient land for burying the dead elsewhere. The contention of defendants 1 and 2 were adopted by defendants 4 to 8. In addition, they contended that they were bona fide purchasers of different portions of the suit land under registered sale deeds, and they had constructed houses after taking necessary permission from the Municipality. It does not appear from the record that the rest of the defendants had filed their separate written statements.

3. On March 27, 1967, the trial court decreed the suit against all the defendants in respect of both the suit properties viz., R.S. Nos. 975/1 and 975/2.

4. Against the decision of the trial court, defendant 1 (elder brother out of the three brother-owners), alone filed an appeal to the District Court being Regular Appeal No. 1236 of 1967. He joined defendants 2 and 3 as Respondents 55 and 56 to the appeal. It may be stated that in the appeal, defendant 1 challenged the whole of the decree and did not restrict his appeal to R.S. No. 975/1 alone in which he had claimed ownership before the trial court.

5. During the pendency of the appeal, on September 17, 1970, defendant 2 i.e., Respondent 55 died leaving behind his widow and minor children who are the appellants before us. They were, however, not brought on record in the appeal. Plaintiff-respondents at no stage in the appeal raised the plea of abatement of the appeal. The District Court decided the appeal on merits and dismissed the same confirming the decree of the trial court in favour of the plaintiffs.

6. Against the decision of the District Court, again defendant 1 alone filed a second appeal in the High Court challenging the whole of the decree without any reservation either regarding the land or the parties. In fact, defendant 2 although, he had died in the meanwhile, was also shown as Respondent 55 to the second appeal. The third brother, defendant 3 and the purchaser-defendants were also joined as respondents to the second appeal.

7. During the pendency of the second appeal, the High Court, by an order, deleted the name of defendant 2 (Respondent 55) from the record. On merits, the High Court held that the customary right was not established and set aside the decree of the trial court. However, the High Court restricted the decree to the appellant i.e. defendant 1 only. The decree against defendants 2, 3 and purchaser-defendants was left undisturbed.

8. The widow and the children of defendant 2, i.e., the present appellants, moved the High Court by a review petition, to modify the decree and to extend the relief to their land also viz., R.S. No. 975/2. The High Court did not entertain the review petition as being barred by limitation. Hence, the present appeal by the widow and the children of defendant 2.

9. The questions of law which arise in the present case are two, viz., whether the appeal before the District Court had abated in view of the non-impleadment of the appe