GUMAN MAL LODHA, J. - (1.) THIS appeal should succeed on short but surest point of abatement as a whole as it is squarely covered by the judgment of the Supreme Court in Rameshwar Prasad's case (1 ). It is not in dispute that there were three plaintiffs, Mohanlal, Ram Khilari and Bhola who filed suit for the plot of land. Their prayer was for cancellation of sale deed and grant of permanent injunction against the defendants. It is common ground that Bhola S/o Rekha expired during the pendency of the first appeal which was filed by all the three plaintiffs on dismissal of the suit, and his legal representatives were not brought on record. Inspite of it, the first appellate court has held that the appeal survived and granted a decree permitting partial relief to the remaining two plaintiffs, Mohanlal and Ram Khilari.
(2.) THE contention of Shri Gopal Garg, the learned counsel for the appellant is that since the decree was joint and indivisible and all the three plaintiffs filed the appeal against the dismissal of the suits, the abatement would not be against one deceased and it would be against all the plaintiffs as a whole. Shri Garg has relied upon the various decisions of the Supreme Court in State of Punjab Vs. Nathu Ram (2), Dwarka Prasad Vs. Harikant Prasad (3), B. S. Singh's case (4), Srichand's case (5), Rameshwar Prasad's case (supra,) and Ram Swarup's case, (6), Padmaram Vs. Surja (7), Jawari Mal's case, (8), Teju Vs. Board of Revenue (9), and Nathu Vs. Laxmi Narain (10), to substantiate the above submissions. Shri J. S. Rastogi, the learned counsel for the respondent, has contested the above position. He placed reliance on the judgment in Dhanna Vs. Board of Revenue for Rajasthan (11 ). On a thoughtful consideration of the entire matter, I find that in Dhanna vs. Board of Revenue (supra) in para 8 after discussing the various decisions, the decision in Rameshwar Prasad's case (supra) was noticed. It was observed that in Rameshwar Prasad's (supra) all the plaintiffs, whose suit had been dismissed, has filed an appeal and thereafter one of them had died and his heir was not brought on the record. In that case, the abatement was held to be total as a whole. The present one is a case precisely of that nature. Consequently, this appeal succeeds and is hereby allowed. The judgment & decree passed by the first appellate court are set aside. The suit of the plaintiff is dismissed.
(3.) THE parties would bear their own costs, throughout. .;