G.N. Das, J.
1. This appeal is by the plaintiffs. The plaintiffs are the owners of a plot of land recorded in C. S. Dag No. 885. On the west of plaintiffs' properties lies C. S. Dag No. 770 which the plaintiffs claim as the village pathway. Beyond that lies C. S. Dag No. 854 which belongs to the defendants. The plaintiffs' case was that the defendants including defendant No. 5 Amina Bibi by a concerted act threw earth on the west portion of the said pathway and was preparing tp put a mud wall on that portion. The plaintiffs accordingly brought a suit for declaration that the disputed strip Schedule Ka of the plaint was a part of the village pathway and for a mandatory injunction directing the defendants to remove the earth which they have thrown and for a permanent injunction restraining the defendants from raising any wall on the disputed land. In the course of the suit, defendant No. 5 Amina died and an application for bringing her heirs on record was dismissed and the trial court directed that the suit shall abate so far as the heirs of Amina are concerned. This order was made on 18-4-1944. No steps were taken by the plaintiffs to have the order vacated and the suit proceeded and in the result the plaintiffs' suit succeeded. On appeal by the defendants, the lower appellate court has held that the entire suit has abated because of non-substitution, of the heirs of Amina Bibi. In the lower appellate court the plaintiffs were respondents, and made an application for withdrawal of the suit and for liberty to bring a fresh suit on the same cause of action. It was otherwise barred and the lower appellate court refused to accede to this prayer. In the result the plaintiffs' suit was dismissed. The plaintiffs have preferred this appeal.
2. Mr. Chowdhury, appearing for the appellants, has contended that the lower appellate court was wrong in allowing the defendants to raise for the first time in the appellate court a plea that the whole suit abated In my opinion the court was entitled to go into the matter, as in the absence of co-trespasser who had participated in the obstruction caused in the disputed pathway no effective decree could be passed in the suit. Mr. Chowdhury referred to a decision in the case of - 'Shibban v. Allaha Mehar' : AIR1934All716 . So far as this Court is concerned, it was held in the case of - 'Arunadoya Chakravarty v. Mahomed Ali' : AIR1928Cal138 that in regard to a co-trespasser who had participated in the trespass if one of the trespassers dies and his heirs are not brought on record the whole suit abates. I cannot, therefore, accede to the first contention raised by Mr. Chowdhury that the abatement should be limited to the heirs of Amina Bibi.
3. Mr. Chowdhury next contended that the plaintiffs may be allowed leave to withdraw this suit. The lower appellate court overruled this prayer on the ground that it was made at a later stage. Mr. Chandra, appearing for the respondents, reiterated the same objection. In my opinion, this is not a correct view to take. The trial court had limited the abatement of the suit so far as it concerned the heirs of Amina. The question whether the whole suit abated or not was not raised by the contesting defendants in the trial court. If the matter had been raised in the trial court the plaintiffs would have taken proper steps at the time and the costs' incurred by the plaintiffs who succeeded in the trial court would not have been thrown away. In these circumstances, it cannot be said that the prayer was a belated one. As the suit cannot proceed in the absence of the heirs of Amina I think the proper order to pass is to set aside the judgments and decrees of the courts below and to direct that the plaintiffs-appellants will be at liberty to bring a fresh suit on the same cause of action if not otherwise barred.
4. The result, therefore, is that the judgments and decrees of the Court below are set aside and the appellants are allowed to withdraw the suit with liberty to bring a fresh suit as directed above. The parties will bear their own costs in this court.