JUDGMENT H.N. Agarwal, M. - This is a second appeal against the decree and order dated May 1, 1970 passed by Sri S.M. Hasan, Additional Commissioner, Faizabad Division, dismissing Appeal No. 701 of 1969/Sultanpur as having abated on account of the death of Shitla Prasad Singh, plaintiff No. 3, and the heirs not having been brought on record in time. 2. I have heard the learned counsel for the appellants and have gone though the record. The respondents have not appeared to contest the appeal in spite of due service. 3. Gauri Shanker Singh and five others had filed a suit under section 209, U.P.Z.A. and L.R. Act against Ramzan Ali and had also impleaded the Gaon Sabha and the State of U.P. as parties. The trial court held that the defendant Ramzan Ali had been in cultivatory possession over the plot in suit in 1359 Fasli and on the date of vesting he became Adhivasi and on the appointed date he became Sirdar, and that the plaintiffs lost their rights and title by lapse of time. With these findings the suit was dismissed. The plaintiff filed an appeal against this order. After the filing of the appeal, Shitla Prasad Singh, one of the plaintiff-appellants died on August 12, 1969. The remaining appellants filed an application for sub-situation of Ram Chander Singh, son and heir of Shitla Prasad Singh,in his place, in the affidavit of Gauri Shander Singh accompanying the application, it was stated that Shitla Prasad Singh had died on May 17, 1969. The defendant-respondent, on the other hand, filed an affidavit stating that Shitla Prasad Singh had died not on May 17, 1969 but on April 17, 1969 and thus the substitution application was beyond time. The Additional Commissioner referred the matter to the trial court for inquiry and report. The trial court submitted a report that Shitla Prasad Singh had died on April 17, 1969. The learned Additional Commissioner thereupon abated the appeal. 4. The learned counsel for the appellants has contended that even assuming that the substitution application was belated, the entries appeal could not abate. The trial court submitted a report that Shitla Prasad Singh had died on April 17, 1969. The learned Additional Commissioner thereupon abated the appeal. 4. The learned counsel for the appellants has contended that even assuming that the substitution application was belated, the entries appeal could not abate. He has argued that the suit in which the deceased Shitla Prasad Singh was a co-plaintiff, having been filed under section 209, U.P.Z.A. and L.R. Act could be instituted by only one of the plaintiffs and the failure to bring the heirs of Shitla Prasad Singh on the record could not result in the abatement of the entire appeal. The test to be applied in such cases is whether the right of relief was an indivisible one necessitating all plaintiffs or appellants jointly or such right or relief was divisible and whether the failure to bring in the legal representative of the deceased plaintiff was fraught with the danger of bringing two decrees contrary to each others. The conclusion of the lower appellate court that the appeal abated in its entirety is not in consonance with this test in law and consequently the judgment of the lower appellate court is not sustainable in law. 5. Order 22, Rule 3, C.P.C. deals with the procedure in case of death of one of the several plaintiffs. This reads as follows: "XXII Rule 3(1) Where one o two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff of plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the court, on an application made in that behalf, shall causes the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. (2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and on the application of the defendant, the court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff." Thus, the rule itself lays down that where one of the several plaintiffs dies and no application for substitution is moved within the time limited by law, the suit shall abate so far as the deceased plaintiff is concerned. It does not provide that the entire suit shall abate. Rule 11 further provides that in application of this Order to appeals, so far as may be, the word 'plaintiff' shall be held to include an appellant. 6. The matter has also been discussed at great length by the Supreme Court in Sri Chand v. M/s Jagdish Pershad A.I.R. 1966 S.C. 1427. The Supreme Court has in this case observed as follows: "This Court has on more occasions than one considered whether in circumstances similar to these, an appeal should stand abated in its entirely. In the State of Punjab v. Nathu Ram (1962) 2 S.C.R. 636 =A.I.R. 1962 S.C. 89 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 headnote 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 (a) to determine 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 courts 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 (1964) 3 S.C.R. 549 =A.I.R. 1963 S.C. 1901 and later in an unreported judgment in Kishan Singh v. Nidhan Singh C.A. No. 563 of 1962, dated December 14, 1964 (S.C.). It may be pointed out that the three tests suggested by Raghubar Dayal, J., in Nathu Ram case (supra) are not cumulative tests. Even if one of them is satisfied, the Court may, having regard to all the circumstances hold that the appeal had abated in its entirety. 7. Applying the criteria laid down by the Supreme Court, we find that the most that can be said in the present case is that only the appeal insofar as it related to Shitla Prasad Singh, the deceased co-plaintiff, abated and not the entire appeal, and the learned Additional Commissioner has erred in law in holding that the entire appeal had abated. 8. The learned counsel for the appellants has also contended that in determining the date of the death of Shitla Prasad Singh, the documentary evidence should have been treated as conclusive or at least given reference, and the lower appellate court has not given any reasons as to why the entry of the date of death of Shitla Prasad Singh was liable to be rejected when such entry had been made in the regular course of business and was official act which had been regularly performed under Section 114-E of the Indian Evidence Act. I do not think this contention has much force. The finding that Shitla Prasad Singh died on April 17, 1969 is a finding of fact based on the consideration of the material evidence produced on the point and this court would not be justified in interfering with this finding. 9. There is, however, yet another aspect of the matter to be considered. The finding that Shitla Prasad Singh died on April 17, 1969 is a finding of fact based on the consideration of the material evidence produced on the point and this court would not be justified in interfering with this finding. 9. There is, however, yet another aspect of the matter to be considered. Even if the learned Additional Commissioner held that Shitla Prasad Singh had died on April 17, 1969 and that the substitution application moved on August 12, 1969 was belated, he was bound to consider the application moved by the counsel for the appellant on April 24, 1970 for condoning the delay and setting aside the abatement. The learned Additional Commissioner has, however, not considered this application at all and has not passed any orders. He has thereby erred in law. 10. The result is that I thereby allow the appeal and set aside the judgment of the learned Additional Commissioner. He shall now proceed to consider the application dated April 21, 1970 for condoning the delay and setting aside the abatement and pass suitable orders thereon in the light of the observations of the Supreme court cited above. Thereafter if he finds that the entire appeal is not to be abated he may proceed to hear and decide the first appeal on merits.