B. Mukerji, J. - (1.) THIS is an application in revision against an order of the Courts below, in effect, holding that a suit had abated in its entirety.
(2.) THE facts giving rise to this revision, shortly stated, were these. A suit was filed for declaration, with an alternative prayer to the effect that in the event of the Court finding the Plaintiff out of possession in respect of any of the suit properties, the Court may grant the Plaintiff a decree for possession also. There were six Defendants to the suit. The case of the Plaintiff, in very brief, was that the Defendants had surreptitiously and without any right got their names mutated in the village records and had thereby cast a cloud on the Plaintiff's title and therefore, he wanted the necessary declaration to remove that cloud on his title. On 24 -10 -1951 Moti Singh, one of the Defendants, died. The legal representatives of Moti Singh were not brought on the record within ninety days, that is to say, up to 22 -1 -1952. An application, however, was made on behalf of the Plaintiff on the 1st of April 1952 for setting aside of the automatic abatement that had taken place. 1 he trial Court by its order dated the 31st of July 1952, held that there was no sufficient cause for setting aside of the abatement and therefore, it dismissed the application of the Plaintiff. The trial Court further held that because of the abatement of the suit as against Moti Singh's heirs, the entire suit had abated.
(3.) AN appeal was preferred by the Plaintiff against the order of the trial Court abating the entire suit and refusing to proceed with the trial of the suit in respect of the other five Defendants than Moti Singh, who had died. The lower appellate Court agreed with the trial Court in holding that the suit had abated in its entirety. Somehow, the lower appellate Court entertained the view that the only question that fell for determination before it in the appeal was whether the application of the Plaintiff for the setting aside of the abatement could be treated as Within time and further, whether the Plaintiff could get the benefit of Section 5 of the Indian Limitation Act. The question whether the suit abated as a whole or it abated as against Moti Singh alone was not pointedly considered by the lower appellate Court, although it said in passing that the suit abated as a whole. The only reason which could, possibly, be held to be the basis for the lower appellate Court's view that the suit abated in its entirety was that according to the Court below the suit having been for possession of land, which was in the joint possession of the Defendants, the abatement of the suit as against one led to the abatement of the suit as against all the Defendants.;