JUDGMENT - G.N. VAIDYA, J.:---On July 15, 1964 the appellant-plaintiff filed a suit in the Court of Joint Civil Judge, Junior Division, Latur to recover possession of 1 acre, 3 gunthas assessed at Rs. 1.50 forming a part of Survey No. 224 being the western portion of Survey No. 224 on the strength of his title as being the owner of Survey No. 224. There was no dispute that the plaintiff was owner of Survey No. 224. The dispute was as to whether the suit land 1 acre, 3 gunthas formed a part of Survey No. 224. According to defendant No. 1, this is a part of Survey No. 225 of which they were in possession. 2. The parties led oral and documentary evidence and the learned Joint Civil Judge by his judgment dated December 11, 1965 passed a decree in favour of the plaintiff as he came to the conclusion that the land in possession of the plaintiff was less than 11 acres 9 gunthas by 1 acre, 8 gunthas. The said finding was set-aside in an appeal filed by the defendants before the learned Assistant Judge, Osmanabad at Latur on February 3, 1967 as the learned Assistant Judge found that the plaintiff had not led satisfactory evidence about the measurements of Survey Nos. 224 and 225. He therefore, allowed the appeal and set aside the decree passed by the trial Court. The judgment and decree of the learned Assistant Judge are challenged in the above second appeal. 3. Mr. Pendse, the learned Counsel for the appellant-plaintiff submitted that there was no dispute about the title of the plaintiff to Survey No. 224 any more and all the contentions raised by the defendants were overruled, and the learned Assistant Judge erred in law in ignoring the evidence on record and in holding merely because the measurement Inspector had not been examined by the plaintiff that the plaintiff filed to prove his title to the suit 1 acre, 3 gunthas. He, therefore, submitted that the judgment of the learned Assistant Judge should be set aside and the judgment of the trial Court should be restored. 4. Mr. He, therefore, submitted that the judgment of the learned Assistant Judge should be set aside and the judgment of the trial Court should be restored. 4. Mr. Abhyankar, the learned Counsel for the defendant submitted that the appeal has abated because respondent No. 1, Ruknoddin Sheikh Ahmed Take died in 1968 after filing of the above second appeal and no steps have been taken by the appellant till today to bring the legal representatives of the appellant on record. There is no doubt that the appeal abated so far as respondent No. 1 is concerned and the disposal of the suit by the learned Assistant Judge would put an end to the claim of the plaintiff against the legal representatives of that defendant. 5. That would not automatically result in abatement of the second appeal against the other defendants who are also disputing the title of the plaintiff to the suit portion of 1 acre, 3 gunthas. The parties being Muslims, it cannot be said that defendant No. 1 who died had the same interest in the property as the other defendants. Thus, although the second appeal is abated so far as respondent No. 1 is concerned, it must be heard so far as other respondents are concerned. It is not necessary to decide whether the legal representatives of the deceased respondent should be bound by any decision that would be made in this case as their interest is entirely different from the interest of other respondents. 6. The real question which should be decided in the case is a simple matter of measurement of lands in Survey Nos. 224 and 225. Instead of taking resort to the simple remedy of getting the lands measured, the parties relied on all sorts of irrelevant objections and legal arguments and this litigation is pending for the last ten years. Unfortunately, it cannot and with this judgment. I think that the ends of justice required that the two lands should be measured by a Cadastral Surveyor at the cost of the plaintiff. Unfortunately, it cannot and with this judgment. I think that the ends of justice required that the two lands should be measured by a Cadastral Surveyor at the cost of the plaintiff. If the Cadastral Surveyor makes a report that the suit land 1 acre 3 gunthas or any part thereof is part of Survey No. 224 and if after hearing the parties, the Court finds that the report is correct, a decree must be passed in favour of the plaintiff; and if, on the other hand, the Cadastral Surveyor makes a report that the suit portion is not a part of Survey No. 224, the plaintiffs suit should be dismissed with costs even against defendants Nos. 2 and 3. 7. In the result, the second appeal is allowed and the suit is remanded to by the trial Court for being disposed of in the light of the observations made therein above by appointing a Cadastral Surveyor at the cost of the plaintiff for measuring lands Survey Nos. 224 and 225 and on receipt of the reports of the Cadastral Surveyor within three months of receipt of the writ of this Court, the trial Court should proceed to pass a decree in accordance with the measurements made by the Surveyor unless the Court finds that the measurements are wrong and in which case another Surveyor may be appointed for measuring the lands and such other order may be passed as may be legal and just. Costs in the suit, costs in the lower Appellate Court and the costs in this Court shall be the costs in the cause. -----