The plaintiffs who are the ap­pellants before me filed the Title Suit T. S. No.24 of 1953 against the respondents and one Moynath Garo (defendant 4) in the Subordinate Judge's Court. Their case was that the suit lands Touji Nos. 59, 96, 105 and 72 belonged to them by inheritance and that they were in possession, that defendants 1-3 (who are respondents 1-3 herein) by fraud got an order passed by the Collector in their favour, that the said order was ultra vires, illegal and void and inoperative that on 9-3-1952 on the strength of the said order defendants 1 and 3, as well as defendant 4 Joynath Garo, Mahim Garo, Jahom Garo and Tanu Garo on behalf of defendant 2 formed them­selves into an unlawful assembly and forcibly dispos­sessed the plaintiffs from the lands and took posses­sion. The plaintiff's did not implead Mahim Gam, Jahom Garo and Tanu Garo in the suit on the ground that they had left the jurisdiction of the Court and were no longer in possession. But they impleaded defendant 4 on the plea that he partici­pated at the time of the dispossession for the first time and they impleaded the remaining defendants besides defendants 1-3 on the plea that they have been illegally possessing the land in collusion with defendants 1-3. Their maiwcase was against defen­dants 1-3 who were setting up tide in themselves. They claimed a declaration of their title and prayed for recovery of possession from the defendants with mesne profits. (2) Only defendants 1, 3 and 7 contested the suit, the rest of them remaining ex parte. Defen­dants 1 and 3 contended in their written statement that they were entitled to Touji Nos. 59 and 96 and have been in possession of the said lands for over the statutory period and they denied the al­leged dispossession. Defendant 7 claimed title to and possession of Touji No. 105 by purchase from defendant 2 on 10-12-1953 which was after the suit was filed. According to him defendant 2 was in possession of the land before his purchase. (3) During the pendency of the suit, defendant 4, Joynath Garo died. The plaintiffs did not implead his legal representatives within the period of limitation. According to him defendant 2 was in possession of the land before his purchase. (3) During the pendency of the suit, defendant 4, Joynath Garo died. The plaintiffs did not implead his legal representatives within the period of limitation. Thereupon defendant 1 filed a petition under Order XXII, rule 4(3) C. P. C. stating that on account of the default of the plaintiffs to bring the legal representatives of defendant 4 on record, the entire suit has abated and praying that the suit may be dismissed. The plaintiffs contested the said petition and stated that defendant 4 had shifted to the village Kalkalia 4 or 5 miles away from the suit lands before his death with his family and was no longer in possession of the suit lands along with defendants 1-3 at the time of his death and hence there was no necessity to bring his legal representatives on record and further that the cause of ac­tion survived against the remaining defendants. They also pointed out that defendant 4 remained ex parte in the suit, thereby showing that he had no contest. (4) The learned "Subordinate Judge agreed with defendant 1 and Ref3 that the suit as a whole had abated and dismissed it. Hence the plaintiffs have come in appeal. (5) The first thing that strikes one is that there was no contest by any of the defendants as far as the Touji land No. 72 was concerned and none of the defendants lay claim to title to or possession of the said land. Defendants 1-3 denied the alleged trespass into the said land. Thus the plaintiffs' title to the said land was not in dispute and he was entitled to possession. Hence all that) the Court had to do as far as Touji No. 72 was concerned was to decide whether the alleged trespass was true in order to decide the liability of the defendants for the mesne profits. As far as that land was concern­ed there cannot be any abatement except in respect of the claim for mesne profits against defendant 4. The liability for mesne profits is a joint and several liability of the trespassers and the cause of action would certainly survive against the remain­ing defendants. As far as that land was concern­ed there cannot be any abatement except in respect of the claim for mesne profits against defendant 4. The liability for mesne profits is a joint and several liability of the trespassers and the cause of action would certainly survive against the remain­ing defendants. The Court could also have pro­ceeded against the ex parte defendants including defendant 4 under Order IX, rule 11 C. P. C. and could have made such order as it thought fit against them at the time of pronouncing judgment. In such a case Order XXII, rule 6 would apply and there will not be any abatement by reason of the death of the ex parte defendant, as the hearing against him must be treated as having been con­cluded. Thus> in any case, there can be no abate­ment as far as Touji No. 72 was concerned and the learned Judge was wrong in dismissing the suit in toto. (6) As far as the lands Touji nos. 59, 96 and 105 were concerned there was dispute regarding title and dispossession between the plaintiffs on the one hand and defendants 1, 3 and 7 on the other. Here again, none of the remaining defendants appeared or contested the plaintiffs' claim. Thus the real dis­pute as far as these 3 lands were concerned was only between the plaintiffs on the one hand and defen­dants 1, 3 and 7 on the other. Defendant 4 had been impleaded as a party as specifically stated by the plaintiffs only because he took part for the first time at the time of dispossession on behalf of de­fendant 2 and because he continued in possession at the time of the suit. It was not the plaintiffs' case that defendant 4 was setting up any title in himself or that his pos­session was based on any ostensible right. Nor did the contesting defendants 1, 3 and 7 state that defendant 4 had any right to or possession of any of the lands. The declaration of title which the plain­tiffs had asked for was required only against de­fendants 1 and 3 and defendant 7 who claimed to have purchased from defendant 2. As for the remain­ing defendants, the plaintiffs claim against them was for possession and for mesne profits and they did not contest either claim. Their remaining ex parte clearly showed that they did not contest the plaintiffs' claim. As for the remain­ing defendants, the plaintiffs claim against them was for possession and for mesne profits and they did not contest either claim. Their remaining ex parte clearly showed that they did not contest the plaintiffs' claim. The Court did not straightway pass a decree against them on ex parte evidence, because the plaintiffs had to establish their title against defendants 1, 3 and 7 regarding those 3 lands before a decree for posses­sion and mesne profits could be passed in their favour. Otherwise there will be inconsistent dec­rees in case the plaintiffs failed to prove their case against defendants 1, 3 and 7. It was only for this reason that no decree could be passed against the remaining ex parte defendants in respect of these 3 items of lands. (7) It was in this situation that defendant 4 died. Now, the question is whether the cause of ac­tion in respect of the 3 items of lands will not sur­vive against the remaining defendants. To decide this question we have to look not only to the al­legation in the plaint but also to the written state­ments of the contesting defendants. The plaintiffs have no doubt stated that defendant 4 trespassed in­to the lands on behalf of defendant 2 and he was impleaded as a, party because of the said trespass and because he remained in possession at (he time of the suit. With such allegations against defendant 4, the cause of action as far as the claim for possession was concerned will not survive even against the legal representatives of defendant 4 as the trespass was something personal and the plaintiff's do not have to get a further decree for possession against defen­dant 4 after his death. The only claim which may be said to survive against the legal representatives of defendant 4 is the claim for mesne profits which, if the plaintiffs insisted, they could claim against the estate of defendant 4. It was for the plaintiffs to decide whether they would persist in the said claim and if they so persisted they could make the legal representatives par­ties for that purpose. But if they did not choose to do so, they will only lose the claim for mesne pro­fits against defendant 4. It was for the plaintiffs to decide whether they would persist in the said claim and if they so persisted they could make the legal representatives par­ties for that purpose. But if they did not choose to do so, they will only lose the claim for mesne pro­fits against defendant 4. The presence of the legal representatives of defendant 4 cannot be said to be absolutely necessary to prove the claim for posses­sion or for mesne profits against the remaining de­fendants. The cause of action clearly survived against the remaining defendants. It is clear that the legal representatives of defendant 4 are not ab­solutely necessary parties to decide the plaintiffs' claim against the remaining defendants. (8) It is meaningless therefore to say that the suit as a whole has abated. There is no provision under Order XXII, rule 4(3) for holding that the suit has abated against all the defendants when the legal representatives of a deceased defendant are not brought on record as parties. The suit only abates against the deceased defendant. As for the remain­ing defendants the question really is whether the suit can be proceeded with against them in the ab­sence of the legal representatives of the deceased defendant. As pointed out in the decision Ram Dei Misrain v. Jurawan Misir, AIR 1930 All 762 - "there is no legislative authority for the propo­sition that where one out of the several defendants dies and the legal representative is not brought or, the record within the time allowed by law, the suit abates as a whole. The effect of the non-joindei is that the suit abates as against the defendant only. How far the absence of his heirs from the array of the parties will affect the rights of the plaintiff to obtain relief against the surviving defendant will depend upon the circumstances of the case and the relief claimed." That was a case like the present one for pos­session and mesne profits and two of the defendants died in the course of the suit and legal representa­tives were not brought on record. Their Lordships of the Allahabad High Court held that the question was how far the claim of the plaintiffs for posses­sion and damages relating to the holding will be affected if all the defendants were found to be in possession of the holding jointly or if the remain­ing defendants do not represent the deceased defendants. Their Lordships of the Allahabad High Court held that the question was how far the claim of the plaintiffs for posses­sion and damages relating to the holding will be affected if all the defendants were found to be in possession of the holding jointly or if the remain­ing defendants do not represent the deceased defendants. In the present case before us it will be seen that defendant 4 trespassed only on behalf o) defendant 2 without any ostensible right in himself and that his death did not at all make it difficult for the Court in continuing the case against the remaining defendants or in passing an effective decree. (9) The case cited above was quoted with approval in the decision Shibban v. Allah Mehar, AIR 1934 AH 716 and it was Held- that the suit real­ly abates against the deceased whose heirs are not brought on record and that in certain cases it may become impossible to go on with the case any fur­ther which would necessitate the dismissal of the suit. That was also a suit for possession against the defendants one of whom died and his legal repre­sentative was not brought on record and it was held that the suit could go on against the rest. (10) I may cite one more decision namely, Mt. Shyamrathi Kunwar v. Dharam Deo Singh, AIR 1951 All 428 in which it has been held: "Order XXII, rule 4 does not provide for abate­ment of a suit as a whole against all the defendants under any contingency whatsoever. A suit abates against the deceased defendant only under certain contingencies. After the Court has found that a suit has abated against a particular person, the next question that calls for decision by the Court is, whether the suit can proceed at all in the absence of the legal representatives of the deceased. A suit abates against the deceased defendant only under certain contingencies. After the Court has found that a suit has abated against a particular person, the next question that calls for decision by the Court is, whether the suit can proceed at all in the absence of the legal representatives of the deceased. If it becomes improperly constituted by reason of the fact that the legal representatives of the deceased are not parties to it, it cannot proceed further and has to be dismissed as improperly constituted." Applying this principle, it will be seen that in the present case the suit can proceed against the remaining defendants and an effective decree can be passed against them for declaration of title, for possession, and for mesne profits and that the ab­sence of the legal representatives did not in any way affect the plaintiffs case against the contest­ing defendants 1, 3 and 7 or the remaining defen­dants. (11) My attention was drawn by the first de­fendant's learned Advocate to certain decisions of the Calcutta High Court. The leading case in the Calcutta High Court is Arunadoya Chakrabarty v. Mahammad AH, AIR 1928 Cal 138. That was a case for ejectment and it was held in that decision: "that in an action for ejectment if any of the persons in possession is left out, he remains in pos­session as not being affected by the decree, and the decree as one in ejectment and for possession be­comes infructuous because the persons ejected as being bound by the decree can always come in under the person who remains in possession and second, there is a certain amount of risk involved in not making the persons in actual possession de­fendants, for, in execution of the decree, persons may happen to be turned out who may then bring actions against the plaintiff for wrongful disposses­sion, not being bound by the decree." The subsequent Calcutta decisions have follow­ed this decision as seen from Hakir Mahammed! v. Abdul Majid, AIR 1953 Cal 588 . But the Calcutta decisions are not followed at least in Allahabad and the view expressed in the decision AIR 1934 All 716 is quite opposed to the view taken in the Calcutta High Court. v. Abdul Majid, AIR 1953 Cal 588 . But the Calcutta decisions are not followed at least in Allahabad and the view expressed in the decision AIR 1934 All 716 is quite opposed to the view taken in the Calcutta High Court. Even in the decision AIR 1928 Cal 138 cited above it will be seen that the Calcutta High Court remanded the case for an investiga­tion on the question whether the legal representa­tive of the deceased defendant in that case was actually in possession and if so whether she was in possession of any specific plot of land in the suit and hence the case against the deceased defendant could be separated from the case against the rest. I have already pointed out that in the instant case before us the contesting defendants themselves do not say that the deceased defendant was in posses­sion of any possession of the property before his death. That being the case one fails to see how defendant 1 could have made an application stating that the entire suit has abated. (12) I may also add that the Calcutta High Court has amended Order XXII, rule 4 in 1938 evidently on account of the decision cited above in AIR 1928 Cal 138 by adding a sub-clause 4 providing that the Court may exempt the plaintiff from the necessity of substituting the legal representative of any defendant who has failed to file a written state­ment or has failed to appear and contest the suit at the hearing and that the judgment may in such case be pronounced against said defendant notwithstanding his death, and such judgment shall have the same force and effect as if it had been pronounced before the death took place. In our present case defendant has already mentioned was ex parte. Evidently in the case reported in AIR 1953 Cal 588 the deceased defendant was not ex parte as in the present case. (13) For all the above mentioned reasons the order of the Subordinate Judge holding that the entire suit has abated and dismissing the suit in its entirety has to be set aside. The appeal is allowed and the suit is restored to file and the case is sent back to the Subordinate Judge for trial against the remaining defendants. The contesting respondents will pay the costs of appeal to the appellants. Appeal allowed.