JUDGMENT B.D. Agrawal, J. - The dispute in this second appeal is defined to certain trees standing on plot No. 163. Far back on August 22, 1933 the defendant no. 1 Raghunath Singh (since dead) made purchase of these trees in auction sale together with certain trees on plot no. 162 in execution of decree obtained by one Mannu Lal Awasthi, According to the plaintiffs, the defendants were wrongly recorded in the revenue papers concerning these plots in the year 1363F. The suit was instituted on December 13, 1957 by the plaintiffs seeking relief of permanent injunction to restrain the defendants from interference against his alleged possession ever these trees. In defence, the defendants 1 and 2 set up their title by virtue of their purchase made in auction sale and pleaded also that they have been in continuous possession. The claim of the plaintiffs was stated to be barred by limitation, in the alternative. 2. The issue as to whether the defendants are Sirdars of the plot No. 162 was referred to the revenue court which gave its finding on December 9, 1958 finding that they were Sirdars in respect of the cultivatory portion of that plot. The Munsif Banda decided the suit on August 17, 1959 finding that the plaintiffs did not have right, title or interest in the trees in dispute. The defendants were also held to be in possession. The suit was, therefore, dismissed. The plaintiffs preferred civil appeal No. 74 of 1959 against the decree. During the pendency of the appeal the plaintiff no. 1 (appellate) died. The death took place on April 1, 1960. The co-appellant, namely, the plaintiff no. 2 applied for substitution of himself as the legal representative. An objection was raised to the effect that the plaintiff no. 1 had left his widow, namely, Smt. Saliman and she is the legal representative. The lower appellant court recorded the finding dated October 21, 1961 to the effect that Smt. Saliman widow is there and she is the heir but nonetheless it took the view that the appellant no. 2 plaintiff, could himself claim to have the right to pursue the appeal in capacity as a co-sharer and, therefore, the substitution of Smt. Saliman was not required. 2 plaintiff, could himself claim to have the right to pursue the appeal in capacity as a co-sharer and, therefore, the substitution of Smt. Saliman was not required. On merits of the appeal, the lower appellate court did not examine the issue relating to the possession over the trees and there was no finding recorded as to whether the defendants had been in possession as claimed by them. The appeal was, however, allowed on December 16, 1961 whereby the suit of the plaintiffs was decreed. 3. Against this decree of the lower appellate court, the defendants preferred second appeal No. 1235 of 1962 in this Court which was decided on April 5, 1968. Raghunath Singh the defendant no. 1 having died during the pendency of that appeal his legal representatives were brought on the record. This Court took the view that the lower appellate court had erred in not recording a specific finding on the point whether the trees in dispute had been sold in auction and as to whether after the alleged execution of the sale possession over the trees had been obtained by Raghunath Singh and whether the purchaser and his heirs had continued to retain possession. The appeal was accordingly allowed and the case remanded to the lower appellate court for deciding the same afresh in the light of these observations. 4. Subsequent to this the lower appellate court decided the appeal pending before it on February 17, 1973. The finding arrived at is that Raghunath Singh defendant no. 1 had purchased 81 trees existing on the plots in question on August 22, 1933. The purchase was not Benami. It was found also that the defendants had been owners in possession of the trees existing in plot No. 162. With respect to the trees of plot No. 163, the finding given is that defendants had not entered into possession. In the light of these findings the suit was decreed for permanent injunction with respect to the trees of plot No. 163 but dismissed with respect to the trees on the other plot No. 162. 5. Aggrieved the defendants have preferred this second appeal against the decree of the lower appellate court dated 17th February, 1973. As mentioned above, this is confined to trees standing on plot No. 163 and there is no cross-appeal or cross-objection in relation to the trees of plot No. 162. 6. 5. Aggrieved the defendants have preferred this second appeal against the decree of the lower appellate court dated 17th February, 1973. As mentioned above, this is confined to trees standing on plot No. 163 and there is no cross-appeal or cross-objection in relation to the trees of plot No. 162. 6. Preliminary objection was raised by Sri G.N. Verma, learned counsel for the appellants before me to the effect that the Civil Appeal No. 74 of 1959 abated on account of the death of the plaintiff No. 1 appellant on April 1,196) and his legal representative being not brought on the record. I have already referred above to the order dated October 21, 1961 made by the lower appellate court at that stage observing that though the plaintiff no. 1 appellant had left his widow, namely, Smt. Saliman the other plaintiff could pursue the appeal nonetheless in his capacity as co-sham. This may not be said to be correct view of the law of the subject. Order XXII, rule 2 Code of Civil Procedure, is not of avail in this matter because upon the death of one of the plaintiff-appellants, the right to sue or continue the appeal did not survive to the remaining plaintiff-appellant alone. The case is governed instead by rule 3 (1) of Order XXII Code of Civil Procedure. Since upon the death of the plaintiff no. 1 the appellant, the right to sue or continue the appeal in respect of his share in the property devolved upon his widow in preference to the remaining plaintiff. We are not concerned here with the case where the suit for possession or injunction against the trespasser may have been instituted by one of the co-sharers of the land. It is a case where both joined to sue and both preferred an appeal against the dismissal of their suit by the trial court. Conflict of decrees may arise in the case if the decision of the trial court were to stand against the legal representative of the deceased plaintiff no. I and if it were to be set aside in so far as the remaining plaintiff no. 2 appellant was concerned. It appears therefore, that on the death of the plaintiff-1 appellant the case could not have been pursued under the law without his legal representatives being substituted. 7. I and if it were to be set aside in so far as the remaining plaintiff no. 2 appellant was concerned. It appears therefore, that on the death of the plaintiff-1 appellant the case could not have been pursued under the law without his legal representatives being substituted. 7. It was argued by Sri A.S. Rai, learned counsel for the respondent that the appellants cannot raise this objection at this stage since there was no such objection taken in Second Appeal No. 1235 of 1962 which was decided on April 5, 1968. The lower appellate court observed that the defendants did not prefer revision against the order dated 21st December, 1961 and hence they were precluded from agitating the matter when the appeal came to be heard and decided on 17-3-1973. I am unable to agree with the contention of the learned counsel or the observations of the court below noticed above. The settled view is, as provided in Section 105 (2) of the Code of Civil Procedure that if an appeal did not lie from the order of remand the correctness thereof could be challenged by an appeal from the final decision as in the case of other interlocutory orders. The second sub-Section does not apply to appeal to the Supreme Court because no appeal lies to the Supreme Court against an order of remand. (See : Satyadhan Ghosal and others v. Smt. Deorajin Debi and another (A.I.R. 1960 S.C. 941). The defendant-appellants could not take the matter in appeal to the Supreme Court against the order of remand made by this. Court dated April 5, 1968. The fact, therefore, that the question concerning the abatement of the appeal was not gone into at that stage by this Court may not preclude the appellants on principle of res judicata from agitating the same as they did before the lower appellate court when the appeal came to be heard and decided subsequent to the question of order of remand. The objection cannot be ruled out on ground that the defendant-appellant did not go in revision against the order dated 21st October, 1961. The objection cannot be ruled out on ground that the defendant-appellant did not go in revision against the order dated 21st October, 1961. The second appeal No. 1235 of 1962 filed by them having been allowed even otherwise on April 5, 1968 and the decree passed by the lower appellate court having been set aside, it cannot be said on this ground too that the appellants are precluded by res judicata from agitating the matter. 8. The respondents' learned counsel argued also that in the order of remand this Court did not specify that the court below had to go into the question of abatement of the appeal and for this reason too the appellants could not raise the issue when the appeal came to be heard by the court below. As I have said above, this Court allowed the appeal preferred by the defendants and set aside the decree of the lower appellate court dated December 16,1961. The direction given to the court below was to decide the appeal afresh and this necessarily implies the decision upon merit. According to law also keeping in view the observations contained in the judgment, it would not be right on the face of the order of remand to say that this did not permit the appellant to raise the points of objections permissible under the law including that the appeal had abated for non substitution of the legal representatives. Since such a plea may go to the root of the matter, the defendant-appellants could as well agitate the same in order to defeat the claim put forward by the either side. 9. Assuming that the appeal did not abate despite the death of the plaintiff No. 1 appellant, the question remains whether the surviving plaintiff-respondent has ceased to be entitled to the relief of permanent injunction asked for by him concerning the trees over plot No. 163. Both the courts below have found that the trees were purchased by the defendant no. 1 Raghunath Singh deceased on August 22, 1933 in auction sale in execution of a decree. Nothing has been urged for the respondent before me against this part of the finding. Both the courts below have found that the trees were purchased by the defendant no. 1 Raghunath Singh deceased on August 22, 1933 in auction sale in execution of a decree. Nothing has been urged for the respondent before me against this part of the finding. It was argued that on the point of possession the lower appellate Court says that the purchaser did not enter into possession over the trees on plot No. 163 though he did acquire possession over the other trees situate on plot No. 162 which also were purchased simultaneously. The submission made, further was that the defendants appeared for the first time in the khasra of 1364 F., as in possession over the trees in dispute and that there is no misreading of evidence in so far as the revenue entries are concerned, by the court below. It may not, however, be over looked that it is neither pleaded nor proved by the plaintiff-respondents that his possession over the trees situate on plot no. 163 has been adverse against the purchaser thereof. It was upto the plaintiff-respondent to have established this, since it is not open to dispute that the defendant no. 1 Raghunath deceased did make purchase of the trees in question. Learned counsel for the respondent could not point to anything to suggest that the possession of the respondent had been adverse and in the absence thereof, as urged by the appellant's counsel, the respondent no. 1 cannot seek to restrain the appellants by permanent injunction. 10. Sri Rai for the respondent argued that the order of remand made by this Court dated April 5, 1968 does not permit the court below to go into the question of adverse possession and the same may not be raised in this appeal either. It is not reasonably possible to subscribe to this contention. This Court specifically found at that stage that the lower appellate court had not gone into the question of possession over the trees involved in controversy. A direction was made therefore to consider and decide that question and also the question as to whether there had been purchases made in the execution of the decree. The appeal was to be decided afresh on merit and it need not be repeated that the judgment and decree dated 16th December, 1961 passed by the lower appellate court were set aside in to to. The appeal was to be decided afresh on merit and it need not be repeated that the judgment and decree dated 16th December, 1961 passed by the lower appellate court were set aside in to to. In this order of remand it is implicit that the court had to consider the ultimate effect of the finding that might be recorded on the point of possession. After all the court was not requiring an academic exercise to be gone into or the proposition relating to possession being considered or adjudicated in abstract. The finding relating to the question of possession was required to be gone into with the specific object, namely, that the entries asserted by the parties may be completely and effectively adjudicated. There can be no denying that there was the implied necessity for the plaintiff-respondent to establish title by adverse possession, if any, keeping in view that the title to the trees had been acquired by the defendant no. 1 deceased as stated above. In the absence of proof of this fact the plaintiff-respondent cannot in my opinion claim title to these trees on plot No. 163 or injunct the defendants-appellants as sought by him. The title to plot no. 163 as such is not required to be gone into in this case because the purchase made by Raghunath Singh deceased was of trees standing on the plot and in the absence of an allegation or proof that this was held by him as his grove, he could not claim to have become the Bhumidhar thereof. 11. For the reasons given above, this appeal succeeds in part and is allowed accordingly. The judgment and decree of the lower appellate court relating to the trees of plot No. 163 are set aside. The suit shall stand dismissed in that behalf. In the circumstances the costs of this appeal shall be borne by the parties.