JUDGMENT : B.P. Jha, J. This miscellaneous second appeal arises out of an ORDER :of the appellate court dated 19.6.1968. 2. This matter arises out of an execution case. The suit was dismissed by we trial judge. In appeal the JUDGMENT : of the trial judge was set aside. In second appeal before the High Court the JUDGMENT : of the trial judge was upheld and the JUDGMENT : of the appellate court was set aside. In short the suit was dismissed. I have been informed by the counsel of both the parties that Letters Patent appeal filed by the plaintiff was also withdrawn. 3. On a perusal of the JUDGMENT : of the trial court, it is clear that the plaintiffs brought the suit for a declaration that plot no. 482 is a Bakast laud over which the defendants (tenants) have absolutely no right or title. The plaintiffs had prayed for confirmation of possession and for permanent injunction restraining the defendants from interfering with the possession. On the basis of these relief’s the plaintiff, brought the suit. In other words, the plaintiff filed the title suit against the defendant, jointly. If the decree would have been passed in favour of the plaintiffs then the decree would have been against 'the defendants jointly. If it is so, then even if a defendant of respondent died, the whole suit or appeal worded abate for the simple reason that the plaintiffs had demanded a joint decree against the defendants. In the present case respondent No. 1 died and the appeal abated against the heirs of respondent No. 1 as it appears from the ORDER :dated 29.3.71. In a case of this type if a defendant or respondent dies and no heir is substituted of the deceased respondent or defendant, the whole suit or the whole appeal will abate as the plaintiffs had demanded a joint decree against all the defendants. In other words, the plaintiffs demanded an indivisible decree against the defendants. If it is so, in the High Court respondent no. 1 dies but no heir of respondent no. 1 was substituted, and as such I hold that the whole appeal abates. It also appears from the application of the respondents that respondent nos. 2 and 26 also died and no heirs were substituted. 4. If it is so, in the High Court respondent no. 1 dies but no heir of respondent no. 1 was substituted, and as such I hold that the whole appeal abates. It also appears from the application of the respondents that respondent nos. 2 and 26 also died and no heirs were substituted. 4. Both the courts have held that the restitution petition of the respondents be allowed in view of the JUDGMENT : of the High Court in Second Appeal. It is stated that when the plaintiffs succeeded in the lower appellate court, the plaintiffs took delivery of possession of the suit land. But when the defendants succeeded in Second Appeal the defendants applied for restitution, which was allowed by the courts below. Hence, I am unable to differ from the concurrent findings of the courts below. Leaned counsel for the appellant contends that the plaintiff had taken settlement of the land from the circle Officer. This fact has been considered by the courts below and both the courts below have rejected the case of the plaintiffs-appellants. It was stated by the learned counsel for the respondents that the executing court has already delivered possession in the year 1966 in respect of the suit land. 5. In the result, the appeal is dismissed but without costs.