Short Note : 1. During the pendency of this appeal appellant No.2 Parwtibai died on 13-10-1967 and no application was made within time to bring the legal representatives of the deceased appellant on record. However, an application was made by Bhera and Deokaran claiming to be the legal representatives of Parwatibai. This being brought on record. This application was dismissed by orders of this Court dated 25-11-1968, holding that Bhera and Deokaran could not be impleaded as legal representatives of parwatibai. But by this order the Court made it clear that so far as the present appellant No.1 Nathu is concerned, whether he alone could continue the appeal or not would be considered at the time of final hearing of this appeal. Held : The question that deserves to be considered is as to whether the present appellant could have filed a suit himself without joining parwatibai or that the present appellant and parwati could have filed two separate suits against the respondent. It could not be doubted that the present appellant could have filed the suit alone for his one-third share. Similarly, Parwati could have tiled a separate suit for her one-third share. In such a situation, even if the appeal filed by parwati has abated as her legal representatives have not been brought on record, still, it could not be said that the appeal has abated as a whole. The present appellant could continue this appeal so far as his one-third share is concerned. In view of this, therefore, the objection raised by learned counsel for the respondent that the whole appeal has abated cannot be accepted. The appeal can be considered so far as the present appellant is concerned. 2. As regards the merits, it is unfortunate that the learned lower appellate Court which was the final Court of facts has not gone into the evidence at all and disposed of the appeal merely on assumptions. In this view of the matter in my opinion, it would not be proper for this Court to go into the facts and decide the appeal. AIR 1972 SC 1181 referred to, (1975) 1 SCC 212 and AIR 1954 Nag. 274 relied on. Appeal allowed. Case remanded.