( 1 ) DEFENDANTS 2 to 11 in O. S. No. 257 of 1960 on the file of the Munsiff, mangalore, are the appellants in this second appeal. The respondents are the plaintiffs. ( 2 ) THE plaintiffs instituted the suit for an injunction restraining the defendants from interfering with their possession of the properties described in plaint 'a' Sch. and for possession of a house. The plaintiffs and defendants 1 to 11 in the trial Court were members of an undivided Aliyasanthana kutumba. The case of the plaintiffs in respect of lands described in plaint 'a' Sch. was that the said lands belonged to one Mrs. Rose Coelho under whom they held chalgeni lease and that they alone were entitled to be in possession and enjoyment of the same as chalgeni lessees. They urged that the defendants were unauthorisedly trying to interfere with their peaceful possession of these lease hold properties and, therefore, the defendants should be restrained from doing so by the issue of a permanent injunction. The house, the possession of which was sought by the plaintiffs, was situate on one of the lands bearing S. No. 23/3 mentioned in plaint 'a' Sch. The defendants pleaded that the chalgeni lease on the basis of which the plaintiffs prayed for relief did not exclusively belong to the plaintiffs, but to the Aliyasanthana Kutumba of which both the plaintiffs and defendants were members. The relevant part of the common written statement filed by defendants 1 to 11 is extracted below:"the lease-hold right in respect of the plaint 'a' Sch. property belongs to the family of these defendants of which the plaintiff and many others are members The said property was in the enjoyment of this family for several generations and at the time of knowledge of these defendants, Manjanu was the manager of the family and these defendants submit that she executed lease deed in favour of the landlord, the same having been executed by her on behalf of the family and also as representing the family. ""after her death the lease was taken in the name of her eldest son Manjayya Shettv who was the Yeiaman of the said pro family and the lease deed in his name was also for and on behalf of the family. ""after her death the lease was taken in the name of her eldest son Manjayya Shettv who was the Yeiaman of the said pro family and the lease deed in his name was also for and on behalf of the family. After his death the lease was executed by Poovakke and the first plaintiff and the said lease also was for and on behalf of the family as the said Poovakke was the Yejamanthi of the familv at that time. The name of the first pontiff was inserted at that time as the landlord wanted the name of a male member and the first plaintiff was the eldest male member at that time. " ( 3 ) DEFENDANTS 1 to 11, therefore, asserted a common title as against the plaintiffs. Their specific case was that the entire chalgeni lease-hold right belonged to all the members of the kutumba including the plaintiffs and not exclusively to the plaintiffs The trial Court dismissed the suit. Against the judgment and decree of the trial Court the plaintiffs filed an appeal before the Civil Judge, Mangalore, on 3-8-1964. During the pendency of that appeal, defendant-1 Thvampanna Shetty died on 4-11-1964. The plaintiffs did not bring on record the legal representatives of the said Thvampanna shetty and allowed the appeal to prceed with without Thvampanna shetty interest being represented by his legal representatives. It is stated that Thvampanna Shetty has left behind him his widow and children as his heirs at law by virtue of the provisions of S. 7 (2) of the Hindu Succession act and those heirs are not on record and that defendants 2 to 11 are rot the legal representatives of the deceased. Thvarrmanna Shetty. When the appeal was heard before the lower appellate Court, a contention was raised on behalf of the surviving defendants namely. defendants 2 to 11 that the appeal as a whole abated in view of the fact that the heirs of thvampanna Shetty had not been brought on record as his legal representative. The learned Civil Judge over-ruled the above contention of defendants 2 to 11 and heard the appeal on merits. By hia judgment, he modified the decree passed by lower Court by decreeing the suit only in respect of the relief of injunction restraining defendants 2 to 11 from interfering with the peaceful possession and enjoyment of the lease-hold properties by the plaintiffs. By hia judgment, he modified the decree passed by lower Court by decreeing the suit only in respect of the relief of injunction restraining defendants 2 to 11 from interfering with the peaceful possession and enjoyment of the lease-hold properties by the plaintiffs. He however dismissed the suit in respect of the house. Aggrieved bv the judgment and decree of the Court below, defendants 2 to 11 have filed this second appeal. ( 4 ) SRI U. L. Narayana Rao, the learned Counsel for defendants 2 to 11, contended that the view of the Court below that the appeal as a whole had not abated, was not correct. He contended that the claim of defendants 1 to 11 was one and indtvisible. All of them made a joint claim to the possession of the suit properties and on that basis they resisted the suit. In that view of the matter, he submitted that the Court below was wrong in observing that the suit being one for mere injunction restraining the defendants from trespassing upon the properties and each defendant being independently liable for his action, it could not be said that there was any common case made out by the defendants. He also pointed out that the reasoning of the lower appellate Court that the defendants were joint tort-feasors and the death of one joint tort feasor could not affect the case against another, was also wrong. The respondents in this case are absent and unrepresented. Sri Narayana Rao relied upon a judgment of the Supreme court in State of Punjab v. Nathu Ram, AIR 1962 SC 89 in support of his proposition. That was a case in which a certain land belonging to two brothers jointly was acquired for military purposes and on their refusal to accept the compensation offered by the Collector, the State Government referred the matter for enquiry to an arbitrator under Rule 10 of the Punjab Land acquisition (Defence of India) Rules. The arbitrator passed a joint award granting a higher compensation and also certain sum on account of income-tax. The arbitrator passed a joint award granting a higher compensation and also certain sum on account of income-tax. ( 5 ) THE State Government appealed against the award to the High court and during the pendencv of the appeal, one of the brothers died and his legal representatives not having been brought on record, the appeal against him abated The question for derision before the Supreme Court was whether in view of the abatement of the appeal against one brother, the appeal against the surviving brother also abated. The Supreme Court held that the appeal against the surving brother also abated for the reason that in order to get rid of the joint decree it was essential for the appellant to implead both the joint decree holders and in the absence of one, the appeal was not properly constituted. They also took into consideration, in coming to that conclusion, that the subject matter for which the compensation had been awarded was one and the same land and assessment of compensation so far as one brother having become final, there could not be different assessments of compensation for the same parcel of land. in respect of another brother. The Supreme Court laid down the following test to find out whether abatement of appeal in respect of one of the parties would result in the abatement of the whole case :" It may, however, be stated that ordinarily the considerations which weigh with the Court in deciding upon this question are whether the appeal between the appellants and respondents other than the deceased can be said to be properlv constituted or can be said to have all the necessary parties for the decision of the controversy before the Court. The test to determine this has been described in diverse forms. The test to determine this has been described in diverse forms. Courts will not proceed with an appeal (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 thp 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. " ( 6 ) IN this case the dispute was between the plaintiffs who are two brothers of an Aliyasanthana kutumba and defendants 1 to 11 who are other members of the kutumba. The plaintiffs claimed that they were alone the lessees under the landlord, whereas defendants 1 to 11 jointly urged that the lease was not in favour of the plaintiffs alone, but in favour of all the members of the kutumba consisting of both, plaintiffs as well as defendants. The trial Court while disposing of the suit in the course of its judgment observed as follows :"when there is evidence to show that the defendants and their family members were in possession of the houses standing in the chalgeni property and in the absence of conclusive evidence by the plaintiffs that the lease which they allege, has been taken from Akkanna shetty, and plaintiff No. 1. who is not examined at all in the case, enured for the benefit of those individuals, I will have to record a finding on those two issues in the negative. " ( 7 ) THE issue disposed of by the above observation by the trial Clourt related to the claim of the plaintiffs that they were alone the chalgeni tenants and that they were in exclusive possession of the said properties. " ( 7 ) THE issue disposed of by the above observation by the trial Clourt related to the claim of the plaintiffs that they were alone the chalgeni tenants and that they were in exclusive possession of the said properties. Applying the test laid down by the Supreme Court to the facts of the present case, it is to be seen that the decree of the lower appellate Court which has modified the decree of the trial Court in effect has resulted in conflicting decisions, namely, that whereas the heirs of defendant-1 against whom the appeal has admittedly abated are not restrained by the lower appellate Court decree from interfering with the possession of the plaintiffs, the other defendants who are members of the same family are restrained by the decree that has been passed by the lower appellate Court from interfering with the possession of the plaintiffs. Secondly, this was not a case in which the plaintiffs could have brought the suit for injunction only against some members of the family when the dispute was between the plaintiffs and all other members of the family and the claim of the other members was that the lease was held by the family consisting of both the plaintiffs and the defendants. It was necessary, therefore, for the plaintiffs to have impleaded all other members of the family and they could not have filed a suit against defendants 2 to 11 alone in order to get an effective relief. The decree that has now been passed against the surviving members is not an effective decree because the heirs of defendant-1 are entitled to remain in possession of the lease-hold properties and to say that they are in possession of the same along with other members of the family. Where one of the respondents dies pending the appeal against the dismissal of a suit for recovery of possession or injunction, the broad test to determine whether the whole appeal abates is whether the continuance of the Appeal would result in two inconsistent decrees or would result in the emergence of a decree which could be rendered futile by the other persons in possession who are not properly before the Court. The question would have been entirely different if the claim of each of the defendants was separate, there being nothing in common amongst them. The question would have been entirely different if the claim of each of the defendants was separate, there being nothing in common amongst them. ( 8 ) THE lower appellate Court was, therefore, wrong in over-ruling the contention raised on behalf of defendants 2 to 11. In the result, the judgment and decree of the lower appellate Court are set aside holding that the appeal filed against defendants 2 to 11 before the lower appellate Court has abated. The judgment and decree of the trial Court are restored. There will be no order as to costs since the resondents are absent and unrepresented. --- *** --- .