JUDGMENT Bhairo Prasad, Member - This second appeal has been filed under Section 331 (4) of U.P. Act No. 1 of 1951 against the decree and judgment passed by Addl. Commissioner, Bareilly Division, Bareilly dated 13-8-1987 against there decree and judgment of Asstt. Collector, 1st Class District Sahajahanpur dated 2-4-1985 passed in a suit No. 50 under Section 229-B of U.P. Act No. 1 of 1951. 2. In brief the fact of this case are that the appellant filed a suit under Section 229-B of U.P. Act No. 1 of 1951 in the trial Court. The suit was dismissed on 2-4-1985 by the trial court. The plaintiff-appellant filed first appeal before the court of Addl. Commissioner, Bareilly in which a plea was taken that Buta Singh one of the party was already dead in the trial court, hence the suit has abated. It was objected by the appellant by filing an application and affidavit that Buta Singh died after the argument and there was no necessary to filed a substitution application, therefore, the trial court has passed the decree and judgment ignoring the fact of death of Buta Singh. However the heirs of Buta Singh has been impleaded in the memo of the appeal and their names has been incorporated as such. The first appellate court vide his impugned decree and judgment held that the appeal has abated as no compliance of Rule 167 of the Revenue Court Mannual has been complied by the Opp. party hence this second appeal has been filed against that decree and judgment. 3. I have heard the learned counsel, for both the parties. Perused the record. 4. The death of Buta singh was not challenged during the pendency of the suit before the trial court, therefore, the first appellate court while recording the finding that the appellant has not explained and given the exact date of death of Buta Singh hence the date of death explained by the respondent is accepted. His conclusion is totally against the fact and conduct of the parties. If the date of death was known to the respondents it ought to have been raised before the trial court. Since it was not done, therefore, the presumption will be that the death of Buta Singh took place after the argument of the suit in the trial court. His conclusion is totally against the fact and conduct of the parties. If the date of death was known to the respondents it ought to have been raised before the trial court. Since it was not done, therefore, the presumption will be that the death of Buta Singh took place after the argument of the suit in the trial court. If the analogy of the first appellate court has abated the appeal only and has not abated the suit. In these circumstances of the fact the finding recorded on this point by the first appellate court is illegal and against the weapon and against his finding. 5. Now the question remains whether there has been a compliance of Rule 167 of the Revenue Court Manual or not when the appeal was filed. The heirs of the deceased Buta Singh are impleaded in the memo of appeal and they are represented by a counsel. Affidavit was also filed to this effect on 13-5-1987. The appeal was filed on 6-5-1985. The learned counsel for the respondent, argued that under Rule 167 of the Revenue Court Manual an application along with affidavit ought to have been filed by the appellant in spite of the fact that in memo of appeal the name of heirs of deceased Buta Singh was recorded. No application and affidavit was filed, therefore, the appeal was incompetent and it abated. Ont this point the learned counsel for the appellant cited the law laid down in 1950 R.D. page 105 in which it has been held that there is a sufficient compliance of Rule 167 of the Revenue Court Manual, if the name of the heirs of deceased are incorporated in the memo of appeal if the deceased dies after the argument in the trial court and no substitution was done. 6. I agree with the law laid down in 1950 R.D. At page 105. No any other law point has been cited before me by the counsel for the respondent. In the memo of appeal the heirs of deceased Buta Singh already impleaded as a partly, therefore, the appeal cannot be abated being incompetent, hence the judgment and decree of the trial court is against law and illegal, therefore, it is set aside and the first appellate court is directed to decide the appeal on merit.