Judgment P.K.Banerji, J. 1. This appeal is directed against the judgment and decree, dated the 1st September, 1965, passed by Sri M. A. Satlar, Subordinate Judge at Dhanbad, in Title Appeal No 56/23 and by which the lower appellate Court set aside the judgment and decree of the trial court and dismissed the plaintiffs suit with the following observation; "Thus though I find myself in agreement with the view on facts as taken by the learned Munsif the appeal is found to be infructuous and untenable on account of the want of substitution of the heirs of Indrajit, Bipin and Harsha within the period of limitation." The court of appeal below did not allow any costs on the ground that the appeal succeeded mainly on technical grounds. 2 The facts of the case are that the plaintiff along with her co-sharer-defendants 3 to 34 owned and hold one-fourth share in plot No. 701 measuring 9.80 acres and its aal bearing plot No. 700 and measuring 0.99 acres situate in mouza Kalidabar Police-station Chas in the district of Dhanbad. The subject-matter of dispute aforesaid is a tank and the plaintiff prayed for declaration of her title in the said tank and aal. The interest of the plaintiff and her co-sharers had been recorded under Khe-wat Nos. 4/1 to 4/8 and in the joint Khewat No. 4/9. According to the plaintiff, her ancestors were agnates of the landlords of the village and they took reclamatory lease from the landlords in respect of large areas of parti and jungle lands in Kaliadabar and they excavated the disputed tank among others and the plaintiffs ancestors constructed a house by the side of the tank, which was thus practically a Khirkhibandh. The plaintiffs case further was that when the family of the plaintiffs ancestors became large, they shifted to a house on a high danga in the extreme end of the village. Subsequently, the plaintiffs ancestors took lease of the entire village from the landlords by a deed, dated the 5th Asarh, 1264 B. S. and by another registered deed, dated the 2nd Asarh, 1288, and although the plaintiffs ancestors acquired proprietary interest in this mouza, they kept their agricultural tenancy distinct and separate from their superior interest in the village and the disputed tank being a part of the agricultural tenancy was protected against the vesting in the State. 3. 3. The learned Munsif decreed the suit on the findings that the disputed tank being a part of the agricultural land of the plaintiff and her co-sharers-because saved from the vesting under the provision of Sec. 6 of the Bihar Land Reforms Act. Defendant No. 35 in the suit is the State of Bihar, which preferred an appeal against the decision of the trial court and the lower appellate court, as has been noticed above, did not disturb the findings of the trial Court, but on the technical ground of abatement of the appeal on account of non-substitution of the heirs of three of the defendants in the suit within the period of limitation, set aside the judgment and decree of the trial court and dismissed the suit with costs. 4. Mr. A. B. Jha, learned counsel, appearing for the appellant in this Court, urged that the only necessary defendants in the suit were the State of Bihar (defendant No. 35), the settlor of the disputed property and Mahabir Singh Choudhury (defendant No. 1), the settlee. The other defendants were, in fact, pro forma defendants and the suit could be maintained and the relief asked for could be granted even if those co-sharer-defendants of the plaintiff had not been impleaded in the suit as such. It appears that respondent No. 4 (In-drajit Choudhury) died after 25-5-1964, the date on which the decree of the trial court was signed. Respondent No. 12 (Harsha) died on 12-11-1964. It was also submitted by Mr. Jha that in spite of the death of defendant No. 10 (Bipin Singh), the surviving defendants could be sued legally in absence of the deceased defendants. Learned counsel referred me, in this connection, to the petition filed by the plaintiff in the suit before the trial court on 24-5-1962 by which the co-sharer-defendants including the three deceased defendants were impleaded as co-defendants in the suit. Learned counsel referred me, in this connection, to the petition filed by the plaintiff in the suit before the trial court on 24-5-1962 by which the co-sharer-defendants including the three deceased defendants were impleaded as co-defendants in the suit. It was stated in this petition as follows: "That the plaintiff has filed this suit on behalf of all the co-sharers who are numerous but no permission was taken, so it is prayed that the plaintiff may be permitted to sue on behalf of all the co-sharers whose names are mentioned below and notice may be ordered to be served on them and they may be added as defendants." The trial court after hearing the parties ordered them to be added as parties to the suit (vide-ordersheet of the trial court, dt. 28-5-1962) and these newly added defendants 3 to 34 filed their joint written statement supporting the claim of the plaintiff and stating inter alia therein that the plaintiff has her homestead land adjacent to the tank and her right is protected under Sec. 5 of the Land Reforms Act. It was further stated that the plaintiff is in charge and in possession of the entire tank in suit while these defendants are in-charge of other tanks below which they have a large area of paddy lands and so the plaintiff can maintain the suit on behalf of all the co-sharers of the Khewat in which the tank in suit has been recorded and these defendants have no objection to her continuing the suit; rather these defendants agreed to that and the defendants wanted the plaintiffs suit to be decreed. The court of appeal below missed the averments in this written statement, which was filed under the signatures of the defendants, on 12-12-1962; at a time when Indrajit Singh Choudhary, Harsha and defendant No. 10 (Bipin Choudhary) were all alive and had joined in the written statement. The court of appeal below missed the averments in this written statement, which was filed under the signatures of the defendants, on 12-12-1962; at a time when Indrajit Singh Choudhary, Harsha and defendant No. 10 (Bipin Choudhary) were all alive and had joined in the written statement. It appears that although the plaintiffs interest in the tank had been recorded along with many others, evidently there was some arrangement amongst the co-sharers by which the tank in question came to be in the exclusive use and possession of the plaintiff and, as such, on the admission of her co-sharers in the written statement, there could be no difficulty in decreeing the suit even if some of the defendants had died in course of the litigation and there was no substitution in their places. The lower appellate court has taken a wrong view that the whole suit abated. Order XXII, Rule 4 of the Civil Procedure Code provides: "(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court on an application made in that behalf, shall cause the legal representatives of the deceased defendant to be made a party and shall proceed with the suit. xxx (2) Where within the time limited by law no application is made under Sub-rule (1), the suit shall abate as against the deceased defendant." The rule does not provide for the abatement of a suit as a whole against all the defendants and if the suit or appeal abated to any extent at all, it abated against the deceased defendants only. In this case, the suit or appeal could freely proceed in the absence of the legal representatives of those deceased defendants, particularly, in view of the fact that no relief was claimed by the plaintiff against any of those defendants 3 to 34 added subsequently as pro forma defendants though not recorded as such. In this case, the suit or appeal could freely proceed in the absence of the legal representatives of those deceased defendants, particularly, in view of the fact that no relief was claimed by the plaintiff against any of those defendants 3 to 34 added subsequently as pro forma defendants though not recorded as such. Consequently, there could be no difficulty in the way of the plaintiff to claim the benefit of the decree in absence of any of those defendants 3 to 34 and the plaintiffs right to sue was not, in any way, affected by the death of some of the defendants and by the non-substitution of their heirs particularly when all the defendants 3 to 34 including the deceased defendants had earlier, in their joint written statement, admitted the exclusive right of the plaintiff and had disclaimed their own interest in the tank. There can be no abatement for failure to bring any legal representative of the deceased defendants, who were for all intents and purposes pro forma defendants having a community of cause along with the plaintiff and against whom no relief was claimed in the suit and, in fact, the only necessary defendants in the suit were the State of Bihar (defendant No. 35), settlor of the tank in question and Mahabir Singh Choudhary (defendant No. 1), the settlee. 5 The appeal is allowed except against Respondent No. 11 (d) against whom it stood dismissed on 24-1-1969 for non-compliance of this Courts order No. 14, dated the 14th January, 1969. The whole appeal, however, does not become incompetent on that account. The judgment and decree of the lower appellate court are set aside and those of the trial court are restored and confirmed. The plaintiff will be entitled to costs throughout against the contesting defendant-respondents only.