S.P. Mehrotra, J.
1. The present Second Appeal, filed by the plaintiffs-appellants, is directed against the judgment and decree dated 23^rd September, 1983 passed by the learned Civil Judge, Banda (Lower Appellate Court) in Civil Appeal No. 164 of 1983, filed by the plaintiffs-appellants against the judgment and decree dated 26^th November, 1982 passed by the learned V ^th Additional Munsif, Banda (Trial Court).
2. It appears that the plaintiffs-appellants filed a Suit against the defendants-respondents, inter-alia, praying for permanent injunction restraining the defendants-respondents from raising constructions over the land in dispute and for mandatory injunction directing the defendants-respondents to remove the newly-built constructions from the land in dispute. The said Suit was registered as Original Suit No. 24 of 1982.
3. The said Suit was filed by the plaintiffs-appellants mainly on the allegations that the land in dispute was Gram Samaj land meant for public use as Khaliyan, and the plaintiffs-appellants had got easementary right of passage over the land in dispute.
4. It was also alleged by the plaintiffs-appellants that the defendants-respondents had never been in possession of the land in dispute, nor were the defendants-respondents in possession of the land in dispute at the time of filing of the Suit.
5. The defendants-respondents contested the Suit and filed their Written Statement. It was alleged by the defendants-respondents that Gaon Sabha, Dataura had given Patta on 2^nd October, 1972 in their favour for constructing houses over the land in dispute ; and that after getting Patta, the defendants- respondents had enclosed their respective areas by boundary-walls and built their houses, and they were residing in the said houses.
6. Both the sides led oral and documentary evidence in support of their respective cases.
7. The Trial Court by its judgment and order dated 26-11-1982 dismissed the said Suit, filed by the plaintiffs-appellants.
8. It was, inter-alia, held by the Trial Court that the land in dispute was not meant for Khaliyan for public use, and that the plaintiffs-appellants had not acquired any easementary right of passage over the land in dispute.
9. It was, inter-alia, further held by the Trial Court that the Gaon Sabha had given Patta of the land in dispute to the defendants-respondents for building their house, and the possession of the land in dispute was also given to the defendants-respondents by the Gaon Sabha.
10. It was, inter-alia, further held by the Trial Court that the Suit was barred by Section 34 of the Specific Reliefs Act, 1963.
11. The Trial Court, inter-alia, further held that the Gram Samaj and the State of U.P. were necessary parties in the Suit, and the Suit was bad for non-joinder of necessary parties.
12. Against the said judgment and decree dated 26^th November, 1982 passed by the Trial Court, the plaintiffs-appellants filed an Appeal being Civil Appeal No. 164 of 1983.
13. The Lower Appellate Court by its judgment and order dated 23^rd September, 1983 dismissed the said Civil Appeal No. 164 of 1983.
14. It was, inter-alia, held by the Lower Appellate Court that the land in dispute belonged to Gram Samaj, and the same was land for public use. The Lower Appellate Court did not accept the case of the plaintiffs-appellants regarding user of the land in dispute, as Khaliyan as also regarding the acquisition of easementary right of passage by the plaintiffs-appellants over the land in dispute.
15. The Lower Appellate Court accepted the case of the defendants-respondents regarding Patta of the land in dispute in their favour, as also regarding their possession over the land in dispute and regarding making constructions thereon.
16. Thereafter, the plaintiffs-appellants filed the present Second Appeal.
17. By the order dated 6-11-1984, the Second Appeal was admitted on the grounds mentioned in the said order dated 6-11-1984.
18. During the pendency of the Second Appeal, the learned Counsel, who had been appearing for the plaintiffs-appellants, was elevated to the Bench of this Court. In the circumstances, notice was issued to the plaintiffs-appellants to engage another counsel.
19. The Office submitted its report dated 01-12-2004/ 03-01-2005 regarding service of notice stated to have been issued to the plaintiffs-appellants to engage another counsel.
20. The said Office Report, inter-alia, showed that the plaintiffs-appellants Nos. 4, 6, 7 and 8 had already expired.
21. Having regard to the said fact and keeping in view the fact that no action had been taken for substituting the heirs and legal representatives of the plaintiffs-appellants Nos. 4, 6, 7 and 8, this Court by its order dated 12-1-2005 concluded that the Second Appeal at the instance of the plaintiffs-appellants Nos. 4, 6, 7 and 8 had abated, and accordingly, dismissed the Second Appeal at the instance of the plaintiffs-appellants No. 4, 6, 7 and 8.
22. As regards service of notice stated to have been issued to the plaintiffs-appellants Nos. l, 3, 9, 10 and 11 to engage another counsel, the said Office Report dated 1-12-2004/ 3-1-2005, inter-alia, shows that neither undelivered Registered envelopes nor Acknowledgement Due Cards in respect of the notices sent to the said plaintiffs-appellants have been received back.
23. In the circumstances, service of notice on the said plaintiffs-appellants (namely, plaintiffs-appellants Nos. 1, 3, 9, 10 and 11) is held to be sufficient in view of the provisions of the Explanation II to Rule 12 of Chapter VIII of the Rules of the Court.
24. As regards the notices stated to have been issued to the plaintiffs-appellants Nos. 2 and 5 to engage another counsel, the said Office Report dated 01-12-2004/ 03-01-2005 shows that the same have been returned by the Post Office with the endorsement that the said plaintiffs-appellants reside out-side the village and their present addresses are not known.
25. A perusal of the undelivered envelopes wherein the said notices were sent to the plaintiffs-appellants Nos. 2 and 5, shows that the notices were sent at the same addresses, as given in the Memorandum of Second Appeal.
26. As the notices were sent to the plaintiffs-appellants Nos. 2 and 5 at the same addresses as given in the Memorandum of Second Appeal, there is no option but to hold the service of notice on the plaintiffs-appellants Nos. 2 and 5 to be sufficient.
27. Service of notice, stated to have been issued to the plaintiffs-appellants Nos. 2 and 5, is accordingly held to be sufficient.
28. It may be mentioned that despite sufficient service of notice on the plaintiffs-appellants Nos. 1, 2, 3, 5, 9, 10 and 11, none has appeared on their behalf.
29. I have heard Sri R.C. Gupta, learned Counsel for the defendants-respondents, and perused the record.
30. Question for consideration is as to what is the effect of the abatement and dismissal of the Second Appeal at the instance of the plaintiffs-appellants Nos. 4, 6, 7 and 8.
31. It is settled that in case, an appeal at the instance of one or more of the appellants stands abated on account of failure to bring their heirs and legal representatives on record, the entire appeal stands abated if deciding the appeal in favour of the remaining appellants would lead to inconsistent decrees in the same Suit.
32. Reference in this regard may be made to certain decisions.
33. In Baij Nath and Anr. v. Ram Bharose and Ors. , a Full Bench of this Court opined as follows (paragraph 25 of the said A.I.R.):
25. We have invited attention to some important cases cited before us. It is unnecessary in our opinion to refer to other cases. We are clearly of the opinion that the answers to the questions postulated by the learned single Judge are as follows:
1. If, in a suit, a plaintiff makes a claim against a number of defendants on common grounds and all the defendants also contest the suit on common grounds and the suit is decided in favour of the plaintiff against all the defendants, an appeal filed by all the defendants can be heard in favour of the remaining defendants after one of the appealing defendants has died during the pendency of the appeal and his legal representatives have not been brought on record so that his appeal has abated, only if the rights and interests of the surviving defendants were not joint and indivisible with those of the deceased defendant, and in the event of the success of the appeal, it does not lead to two inconsistent and contradictory decrees.
2. While the appeal of the remaining defendants can be heard, the decision in it will not ensure to the benefit of the legal representatives of the deceased defendant-appellant.
34. In Sri Chand and Ors. v. Jagdish Pershad Kishan Chand and Ors. A.I.R. 1966 Supreme Court 1427, their Lordships of the Supreme Court held as under (paragraphs 4, 6 and 7 of the said A.I.R.):
4. Counsel for the first respondent contended that the appeal had abated in its entirety because the heirs of Basant Lal had not been brought on record, and the ground on which the judgment of the High Court proceeded was common to all the sureties. In our view this objection must be upheld. The appeal of Basant Lal has abated since the legal representatives to his estate have not been impleaded, and the record of the appeal is defective. That is not denied by the appellants. But it is urged that this Court is competent to set aside an order of the High Court in its entirety on the ground that it is not sustainable in law and in any event to set aside the order in so far as it affects the claim of appellants 1 and 3 and the third respondent. Support was sought to be derived for the first contention from Order 41 Rule 4 of the Code of Civil Procedure and it was urged that even if the decree be assumed to have proceeded on a ground common to all the sureties, it is open to any one or more of the sureties to appeal from the order and the appellate Court may reverse or vary the decree in favour of all the sureties. This plea stands refuted by the judgment of this Court in Rameshwar Prasad v. Shambehari Lal Jagannath . It was held by this
Court in Rameshwar Prasad's case that an appellate Court has no power to proceed with an appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under Order 41 Rule 4 when the decree proceeds on a ground common to all the plaintiffs or defendants, if all the plaintiffs or the defendants appeal from the decree and any of them dies and the appeal abates so far as he is concerned.
6. Basant Lal died after the order of the High Court under appeal. He had preferred an appeal, but since the legal representatives to his estate have not been brought on record, his appeal has abated. The order of the High Court holding that the sureties are liable to satisfy the claim notwithstanding the objections raised by Basant Lal has become final. In the appeal filed by the appellants 1 and 3 if this Court holds that the High Court was in error in deciding that the surety bond was not enforceable because it was not registered, or that the first respondent has done some act which has discharged the sureties from liability under the bond, there would unquestionably be two inconsistent orders one passed by the High Court holding that the surety bond was enforceable, and the other, the view of this Court that it is not enforceable.
7. This Court has on more occasions than one considered whether in circumstances similar to these, an appeal should stand abated in its entirety. In the State of Punjab v. Nathu Ram this Court explained the tests applicable in considering whether an appeal abates in its entirety when it has abated qua one of the respondents. The head note of the case reads:
If the Court can deal with the matter in controversy so far as regards the rights and interest of the appellant and the respondents other than the deceased respondent, it has to proceed with the appeal and decide it : otherwise it will have to refuse to proceed further with the appeal and therefore dismiss it. Ordinarily, the consideration which will weigh with the court in deciding upon the question whether the entire appeal had abated or not will be whether the appeal between the appellants and the respondents other than the deceased respondent can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the court and the tests to determine this have been described thus: (a) when the success of the appeal may lead to the court's coming to a decision which will be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the court and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective that is to say it could not be successfully executed.
The abatement of an appeal against the deceased respondent means not only that the decree between the appellant and the deceased respondent has become final, but also as a necessary corollary that the appellate court cannot in any way modify that decree directly or indirectly.
When the decree in favour of the respondents is joint and indivisible, the appeal against the respondents other than the deceased respondent cannot be proceeded with if the appeal against the deceased respondent has abated."
The principle of this judgment was affirmed in Rameshwar Prasad's case and later in an unreported judgment in Kishan Singh v. Nidhan Singh C.A. No. 563 of 1962, dated 14-12-1964 (SC). It may be pointed out that the three tests suggested by Raghubar Daval, J., in Nathu Ram's case are not cumulative tests. Even if one of them is satisfied, the Court may, having regard to all the circumstances, hold that the appeal has abated in its entirety.
35. In Dwarka Prasad Singh and Ors. v. Harikant Prasad Singh and Ors. , their Lordships of the Supreme Court observed as under (paragraph 7 of the said AIR):
7...But this matter stood concluded by the decision of this Court in Rameshwar Prasad v. Shyam Beharilal Jagannath . In that case the appeal had been filed in the High Court not by any one or some of the plaintiffs against the whole decree hut had been filed by all the plaintiffs jointly. One of the appellants died and his legal representatives were not impleaded. It was laid down by this Court that Order 41, Rule 4 could not be invoked because the appellate Court had no power to proceed with the appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under that rule because if all the plaintiffs or defendants had appealed from the decree and any one of them had died the appeal had abated so far as he was concerned under Order 22, Rule 3. The appeal of the surviving appellant could also not be heard because of the rule laid down in the State of Punjab v. Nathu Ram . According to that rule the abatement of an appeal means not only that the decree between the appellant and the deceased respondent becomes final but also, as a necessary corollary, the appellate Court cannot in any way modify that decree directly or indirectly. The decision in Nathu Ram's case (supra) was referred to in Pandit Siri Chand v.
Jagdish Prashad Kishin Chand where the decision was somewhat similar to Rameshjwar Prasad's case (supra). It was also emphasized that in a situation where two inconsistent orders or decrees would result the rule in Nathu Ram's case would be applicable. It may be mentioned that in that case an award had been made for payment of compensation in favour of two brothers L. & N. The State appealed against the award to the High Court. During the pendency of the appeal respondent L died and no application was made for bringing on record his legal representatives within the requisite period of limitation. 'The question was that since the appeal had abated against L what was its effect in appeal against N. It was observed that the consideration which would weigh with the Court in deciding whether the entire appeal had abated or not would be whether the appeal between the appellants and the respondents other than the deceased respondent could be said to be properly constituted or could be said to have all the necessary parties for the decision of the controversy before the Court. Another main test was whether the success of the appeal would lead to a decision which would be in conflict with the decision between the appellant and the deceased respondent. Thus the Court will have to pass a decree contradictory to the one which had already become final with respect to the same subject matter between the appellant and the deceased respondent. It is arguable that the present case is distinguishable from the decisions in Rameshwar Prasad (1964) 3 SCR 549 : AIR 1963 SC 1901 and Pt. Siri Chand (1966) 3 SCR 451 : AIR 1966 SC 1427 (supra). Here the appellate Court could, under Order 41, Rule 4 of the Civil Procedure Code reverse the decree for specific performance since the defendants second party filed the appeal and Guha, the vendor, who died had not joined in the appeal. The decree for specific performance proceeded on a ground common to both sets of defendants. It could, therefore, be set aside in terms of the above provision. But there is a joint decree in favour of both sets of defendants for the receipt of Rupees 77.000/-. If the decree for specific performance is set aside that part of the decree will also have to go. It is not possible to understand how that can be done in the absence of the legal representatives of the deceased Guha. Moreover, the plaintiffs had claimed against Guha, in the alternative, a decree for substantial amount consisting of the part consideration paid and certain other amounts. If Guha had been alive or if his legal representatives had been impleaded in time the Court could, while setting aside the decree for specific performance, grant the alternative prayer which was only made against Guha. This cannot be done now. In these circumstances we are of the view that Order 41, Rule 4 of the Code of Civil Procedure cannot be of any avail to the appellants. The abatement of the appeal, so far as Guha was concerned, will prove fatal to the entire appeal as either inconsistent and contradictory decrees will have to be passed or proper reliefs cannot be granted in the absence of a necessary party against that party or his legal representatives.
36. In Matindu Prakash (Deceased) by Legal Representatives v. Bachan Singh and Ors. , their Lordships of the Supreme Court held as under (at pages 2029 - 2030):
...It may be mentioned here that while the appeal was pending before the High Court according to the appellants, two of the appellants in the Letters Patent appeal in the High Court, namely, Kartar Singh and Arjan Singh died on the 10^th June, 1960 and 20^th March 1961, respectively, and despite this the appellants did not take any steps to bring the heirs and legal representatives of those appellants on the record...
In the circumstances, therefore, it is clear that the fact that Kartar Singh and Arjan Singh died during the pendency of the Letters Patent Appeal before the Division Bench is not disputed by the respondents. The question whether the appeal abates as a whole so as to entail a dismissal of the entire suit is a matter which can be gone into after a perusal of the nature of the pleadings, the relief granted by the court and other materials on the record. As the High Court has not gone into this question we would allow this appeal, set aside the judgment of the High Court (of the Letters Patent Bench) and remit the Letters Patent appeal to the High Court to record a finding and decide whether by virtue of the deceased appellants before it, the Letters Patent appeal abated as a whole resulting in the dismissal of the appeal itself or the appeal had abated qua the deceased appellants before it, and dispose of the appeal in accordance with law. 'There will be no orders as to costs.
37. In Teju and Ors. v. Board of Revenue and Ors. , the Rajasthan High Court laid down as follows (paragraph 5 of the said AIR):
5. ... In Sri Chand v. Jagdish Pershad Kishan Chand AIR 1966 SC 1427, the party applied to execute a decree against the sureties. Objections were raised by the sureties but the same were rejected by the Sub-Judge, which order was confirmed on appeal by the High Court. During the pendency of the appeal before the Supreme Court, one of the sureties died. Question arose as to whether the appeal could be proceeded with in the absence of the legal representatives of the deceased surety appellant not having been brought on record. The Supreme Court held that...appeal could not be proceeded with....In the present case, it will be seen that the plaintiffs case was that the defendants had illegally occupied the land. The Court had accepted this contention and given a joint and indivisible decree for possession against all the defendants. The decree by the Revenue Appellate Authority did not specify separate shares for which possession was to be restored to the plaintiff by each separate defendant. The decree was a joint and an indivisible one. No doubt, it is true that the defendants took a position in their written statement that they were in possession of separate pieces of land but this plea has not been accepted by the Courts below. No doubt, if an appeal had been competent and proceeded with on merits, it may have been open to the defendants to show their separate possession and the Court in that case would have to deal separately with that plea. But the difficulty in the way of the defendant petitioners is that there has been an adjudication and a decree has been passed by the Revenue Appellate Authority which has held the plaintiff to be entitled to be restored possession of the land from all the defendants jointly. The decree is thus joint and indivisible one against all the defendants and not against each one of the defendants separately. In that view, as the decree was a joint and indivisible one, the death of some of the defendant-appellants would result not only in the appeal having abated with regard to the deceased appellant but will have the inevitable consequences that the appeal by the other appellants could not be proceeded with....
38. In Kamla Shankar and Ors. v. Shambhoo Nath and Ors. 1983 ALJ 783, a learned Single Judge of this Court opined as under (paragraphs 3, 5 and 6 of the said ALJ):
3. The decree under appeal is of permanent injunction restraining the defendants from interfering with the possession of the plaintiff over the land in suit.
5. The decree of injunction does hind persons, hut is granted or refused on an adjudication of rights of the parties to the land with respect to which injunction is sought, as in the present case. An injunction restraining a person from interfering with another person 's possession or use of land, will not he issued by decree, by a Civil Court, unless the Courts find that the person seeking the injunction is entitled to and possessed of the right and interest claimed by him in the land, and that the person against whom the injunction is sought could not lawfully interfere with or obstruct the exercise of that right and use and possession of the land pursuant to that right, by the person seeking the injunction. The issue of an injunction by decree of Court, as in this case, is thus based on an adjudication of the rights of the parties to the land. On the decree becoming final, as against a party, the adjudication of the rights to the land on which it is based also becomes final. It is not disputed that with the abatement of Kamla Shankar 's appeal on his death, the decree of injunction has become final against his heirs and legal representatives. The adjudication of rights on which the decree is based has also become final as against his heirs and legal representatives. The question is whether the surviving appellants could continue with their appeal, that is to say whether they could assail the correctness of the adjudication of the rights of the parties to the land in suit, which had become final against the heirs of the deceased appellant and in favour of the plaintiff-respondents. There is a catena of cases starting from Gairai Tewari v. Bhagirath Pandey AIR 1924 All. 95 followed by Rani Dhan Dei Kuer v. Fatima Zuhra AIR 1939 All 698, Baijnath v. Ram Bharose ; Rameshwar Pd. v. Shyam Behari Lal AIR
; Ram Swamp v. Munshi and Dwarka
Prasad v. Hari Kanta Prasad of the Supreme Court which laid down the principle that in case the right and interest of the surviving appellants or respondents with the deceased appellant or respondent, as the case may be. Whose legal representatives have not been brought on the record, are joint and indivisible, the appeal cannot be heard at the instance of the surviving appellants or against the surviving respondents.
6. In the present case the deceased-appellant, Kamla Shanker and the surviving appellants Nos. 2, 3 and 4, Chabbinath, Ram Shanker alias Nanku and Chhotey Lal, were brothers, being sons of Mata Gulam and their defence was common and almost identical, although Chabbi Nath and Ram Shanker alias Nanku filed one written statement and Kamla Shanker filed a separate written statement. The defence raised by Luthoor, the fifth appellant, was also substantially the same. Indeed, the defence raised by respondents Nos. 3 and 4 was also the same as raised by respondents appellants Nos. 1, 2 and 3. The issues on which the parties went to trial also do not show that any of the defendants was claiming any independent right or interest in the land in suit separately from other defendants. The defence was, thus, common. The right in which they contested the suit was, thus, claimed by the defendant in common for themselves. The decree passed was also joint and indivisible. The appeal cannot, therefore, be heard at the instance of the surviving appellants, inasmuch as the decree that has become final against the legal representatives of the deceased appellant Kamla Shanker, cannot now be varied....
39. In Netar and Ors. v. Jagta AIR 1985 Himachal Pradesh 30, the Himachal Pradesh High Court held as under (paragraphs 5, 6 and 7 of the said AIR):
5. In respect of the case in hand, the respondent had filed a suit against the appellants and the deceased Chand, for the possession of the land in dispute. A decree against all of them for possession of the land was passed by the trial Court. The said decree was affirmed by the lower appellate court on the ground that the appeal had abated in its entirety.
6. I have considered the respective contentions of the learned Counsel for the parties. I am of the opinion that the view which has been taken in the Full Bench decisions of Lahore High Court is inconsistent with the view taken by their Lordships of the Supreme Court in the aforesaid decisions.
7. Under the circumstances, the inevitable conclusion that can be drawn on the basis of the aforesaid decisions of the Supreme Court is that the view taken by the lower appellate Court is correct that the appeal has abated in its entirety. Consequently, the appeal is dismissed, but keeping in view the circumstances of the case, the parties are left to hear their own costs.
40. In Shri Bakshish Singh (dead) by Lrs. v. Arjan Singh and Ors. , their Lordships of the Supreme Court opined as under (paragraphs 4 and 5 of the said Judgment Today):
4. It is well settled law that when the decree is single and indivisible, there cannot be inconsistent decrees as against the deceased respondents and the contesting surviving respondents. It is seen that two respondent-partners died pending second appeal Therefore, there cannot be any inconsistent decree as against the dead persons and against whom the decree dismissing the suit had become final and other contesting respondents whose rights are to be adjudicated in the second appeal.
5. It would, therefore, be clear that the High Court has not committed any error of law. Since the appeal has already got abated as against the deceased respondents, the Court cannot proceed further on merits. Equally, the same situation is confirmed in this appeal also. Since respondent Nos. 8 and 14(i) had already died and their rights have become final; since their legal representatives have not been brought on record and the appeal stands abated as against them, it would be inconsistent if we go into the merits of the matter as against the contesting respondents in this appeal. Under these circumstances, this appeal also stands abated as against all the respondents.
41. From the narration of the facts given in the earlier part of this judgment, it is evident that the Second Appeal at the instance of the plaintiffs-appellants Nos. 4, 6, 7 and 8 stands dismissed, as having abated. Therefore, as regards, the plaintiffs-appellants Nos. 4, 6, 7 and 8, the decrees passed by the Courts below dismissing the Suit filed by the plaintiffs-appellants Nos. 1 to 11 have become final.
42. The said Suit, as noted above, was filed by the plaintiffs-appellants, inter-alia, praying for permanent injunction restraining the defendants-respondents from raising constructions over the land in dispute and for mandatory injunction directing the defendants-respondents to remove the newly-built constructions from the land in dispute.
43. Having regard to the facts and circumstances of the case and the nature of reliefs sought in the Suit, as also the nature of decrees passed by the Courts below, 1 am of the opinion that in case, the Second Appeal at the instance of the remaining plaintiffs-appellants (namely, plaintiffs-appellants Nos. l, 2, 3, 5, 9 10 and 11) is heard and decided in their favour, the same will evidently lead to inconsistent decrees in the same Suit.
44. The decrees of the Courts below having attained finality as regards the plaintiffs-appellants Nos. 4, 6, 7 and 8, the Suit at their instance for the afore-mentioned reliefs stands dismissed. Now, in case, the Second Appeal at the instance of the remaining plaintiffs-appellants is allowed, and the decrees of the Courts below are set-aside, and the Suit at the instance of the said plaintiffs-appellants for the aforementioned reliefs is-decreed, the same would lead to inconsistent decrees in the same Suit.
45. Consequently, in view of the abatement of Second Appeal at the instance of the plaintiffs-appellants Nos. 4, 6, 7 and 8, the entire Second Appeal stands abated.
46. Accordingly, the Second Appeal stands dismissed as having abated. However, on the facts and in the circumstances of the case, there will be no order as to costs.