IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.270 of 1994 1, Rameshwar Sah 2. Rajendra Sah Both sons of Mahadeo Sah, resident of village Barhara Kothi, P.S. Barhara, District Purnia. ….Defendants Ist Party-Respondents Ist Party-Appellants. Versus 1. Chandra Kanti Devi , widow of late Hasrdeo Sah 2. Jawahar Prasad 3. Dhananjay Kumar Sah Sons of late Hardeo Sah 4. Puspa Devi, w/o Swaminath Sah, D/o late Hardeo Sah 5. Latika Kumari, D/o late Hardeo Sah All sons of Mahadeo Sah, resident of village Barhara Kothi, P.S. Barhara, District Purnia. …Plaintiffs-Appellants-Respondents Ist Party . 6. Kallar Sah, son of late Genilal Sah, resident of village Mirjapur Kothi, P.S. Simraha, District Araria 7. Sita Devi, wife of Ram Sewak Sah, resident of village Terhi Musahari, P.S. Forbesganj, District Araria. 8. Radha Devi, wife of Ram Prasad, resident of village Kalchari Balua, P.S. Banmankhi, District Purnea 9. Jaimala Devi wife of Baidyanand Sah, resident of village Khakria Koske, Purnia, P.S. Narpatganj, District Araria. …Defendants..Respondents-Respondents 2nd parties. ----------- For the appellants : M/s Bhupendra Narayana Sinha and Shailendra Kumar, Advocates For respondents no.1,3to5: Mr. Ashok Kumar Dubey, Advocate. For remaining respondents: None. ----------- 10/ 06.04.2010 I.A. N o. 1158 of 2004 has been filed on 19.02.2004 on behalf of respondents no. 1, 3 to 5 stating that the entire appeal has abated and as such the said abatement has to be recorded . 2. The record of the case shows that on 23.02.2004 learned counsel for the said respondents tried to serve a copy of the said interlocutory application upon learned counsel for the appellants, but he could not meet him. However, admittedly, a copy of the said interlocutory application has been served upon learned 2 counsel for the appellants on 11.03.2010. 3. Although more than three weeks has elapsed, but still no reply or counter affidavit to the said interlocutory application has been filed on behalf of the appellants. Hence there is no denial of the facts stated by the respondents in the said interlocutory application. 4. Learned counsel for the said respondents states that respondent no.2 Jawahar Prasad, who was one of the plaintiffs of the title suit and was one of the appellants of the title appeal, out of which this second appeal has arisen, had died as far back as on 25.10.1999 leaving behind a widow and two sons, but till date no step has been taken nor any application has been filed by the appellants either for substituting the said heirs or even for informing the Court about the same. 5. So far question of knowledge of the death of respondent no.2 is concerned, it is stated that in another case bearing Title Appeal No. 68 of 1998, in which the said Jawahar Prasad was the sole appellant and the mother of the appellants of the instant second appeal, was respondent an application for substitution of the heirs of Jawahar Prasad was filed as far back as on 03.12.1999, which was allowed by the said court vide order dated 15.11.2000. 6. In the aforesaid facts and circumstances, it is quite apparent that in spite of having knowledge of the death of respondent no.2 Jawahar Prasad , the appellants have not taken any step for substitution of his heirs and legal representatives and as 3 such this second appeal had abated against respondent no.2 Jawahar Prasad more than a decade back. 7. Although no reply or counter-affidavit to the said interlocutory application has been filed by the appellants but their learned counsel vehemently opposes the contention of learned counsel for the respondents and submits that this second appeal has already been admitted and hence this matter be considered at the time of final hearing of the second appeal. However, this Court does not find any reason for waiting further in this matter as abatement has automatically taken place a decade back and this Court has to only record a finding with respect thereto. 8. It is also quite apparent that respondent no.2 along with respondents no.1, 3 and 5 had jointly filed the title suit for declaration of their title and confirmation of possession as well as for recovery of possession and also for declaration that the two registered sale-deeds dated 29.10.1984 executed late Genalal Sah in favour of Rameshwar Sah and Rajendra Sah (appellants) was illegal and without jurisdiction. In the said circumstances, common reliefs were sought jointly by all the plaintiffs including respondent no.2 Jawahar Prasad against the defendants. The said plaintiffs including the said Jawahar Prasad also jointly filed the title appeal, which was allowed by the court of appeal below decreeing the plaintiffs common and joint claim. 9. In the said circumstances, reliefs being not separable, the abatement of this second appeal against respondent 4 no.2 Jawahar Prasad would affect the entire second appeal, which is, thus, abated as a whole. 10. Accordingly, this second appeal is disposed of. MPS/ ( S. N. Hussain, J. )