JUDGMENT Brojendra Prasad Katakey, J. 1. This appeal by the plaintiffs is directed against the judgment and decree dated 15th May, 2003 passed by the learned Civil Judge (Senior Division), Karimganj, in Title Appeal No. 26/2000, dismissing the appeal preferred by the present appellants by affirming the judgment and decree dated 9th June, 2000 passed by the learned Civil Judge (Junior Division) No. 1, Karimganj in Title Suit No. 87/1996, whereby and whereunder the suit filed by the present appellants has been dismissed. The appellants as plaintiffs instituted the suit, in representative capacity, after obtaining leave of the Court as required under Order 1 Rule 8 CPC, praying for declaration that the land measuring 0.49 Acre, more fully described in Schedule to the plaint, is a graveyard used by the residents of Deoakuri and Mirjadipur Villages, over which the defendants have no right, title and interest or possession, apart from confirmation of possession of the villagers and also for injunction, contending inter alia that the said land is being used as graveyard by the residents of the aforesaid villages for about 100 years - the land having been given by the original owners for that purpose, thereby creating the Wakf. It has further been contended that in the settlement operation during 1959-67, the suit land was recorded as Wakf in the name of Mutawali of Deoakuri Mosque in Dag No. 332 of Khatian No. 39. The further pleaded case is that the suit land is spread over in 3 (three) Dags in Khatian No. 39 and land in Dag No. 332 has been recorded as pond in the revenue record wrongly instead of graveyard and instead of recording Dag No. 327 as a pond. The plaintiffs further contended that since the defendants in collusion have got their names mutated in the revenue records, they have to institute the suit praying for the reliefs, as noticed above. 2. The suit of the plaintiffs has been contested by the defendants, other than the defendant No. 2, by filing joint written statement, denying the claim of the plaintiffs and contending that the suit land belongs to the answering defendants and they have been enjoying the same. 2. The suit of the plaintiffs has been contested by the defendants, other than the defendant No. 2, by filing joint written statement, denying the claim of the plaintiffs and contending that the suit land belongs to the answering defendants and they have been enjoying the same. It has further been contended that the suit land was never used as a graveyard by the villagers of the aforesaid villages as contended by the plaintiffs but part of the suit land has been used as a private graveyard by the defendants. The plea of maintainability of the suit, in view of the provision contained in Section 154 of the Assam Land and Revenue Regulation, 1886 (in short, "1886 Regulation"), has also been raised, apart from non-joinder of necessary party, i.e. the Settlement Officer. 3. The trial Court, based on the pleadings of the parties, framed the following issues for determination:- 1. Is there any cause of action for the suit? 2. Is the suit maintainable in its present form? 3. Is the suit bad for defect of parties? 4. Whether the suit is barred under the provisions of Section 154 of Assam Land & Revenue Regulation Act, 1886? 5. Is the suit properly valued and proper court fee paid? 6. Whether the plaintiffs have right, title, interest over the suit land? 7. Whether the plaintiffs are entitled to get a decree as prayed for? 8. To what relief if any the plaintiffs are entitled? 4. The trial Court, upon appreciation of evidence, both oral and documentary, adduced by the parties dismissed the suit by holding that the suit is bad for non-joinder of necessary parties, i.e. the Settlement Officer, that the suit is barred under Section 154 of the 1886 Regulation and that since the prayer for substitution of the legal heirs of the defendant No. 1 has been rejected vide order dated 27th April, 1998 and consequently the suit has abated as against the defendant No. 1, the entire suit has abated. 5. Being aggrieved, the plaintiffs preferred the aforesaid appeal challenging the judgment and decree passed by the trial Court and also challenging the order dated 27th April, 1998 passed by the trial Court refusing to substitute the legal heirs of the defendant No. 1. 5. Being aggrieved, the plaintiffs preferred the aforesaid appeal challenging the judgment and decree passed by the trial Court and also challenging the order dated 27th April, 1998 passed by the trial Court refusing to substitute the legal heirs of the defendant No. 1. The first appellate Court while holding that the suit of the plaintiffs is not bad for non-joinder of necessary parties, as the Settlement Officer is not a necessary party and also that the suit of the plaintiffs is also not barred by Section 154 of the 1886 Regulation, however, has upheld the finding recorded by the trial Court that the suit of the plaintiffs has abated in its entirety, in view of the order dated 27th April, 1998 passed by the trial Court refusing to grant the prayer for substitution of the names of the legal heirs of the defendant No. 1. The appellate Court, however, did not go into the legality and validity of the order dated 27th April, 1998, though the said order has been put to challenge in the appeal by setting up a ground in the memo of appeal. 6. This appeal was initially admitted for hearing vide order dated 2nd September, 2003 on the following substantial questions of law:- (1) Whether a representative suit filed under Order 1 Rule 8 for public cause followed by notified declaration of such institution through the trial Court can be abated as decided by the Courts below against the plaintiff. (2) Whether the learned lower appellate court acted lawfully in dismissing the suit he himself having found the Ext. 'C' adduced by the defendants as the basis of their title not an authenticated one being a mirasdari chitta and not patta land from Government. (3) Whether a verbal Wakf made by land owner with delivery of the possession of the concerned land as grave yard to the villagers (Plaintiffs) more than 100 years ago as proved in evidence can be denied on the ground there was no written Wakf. 7. (3) Whether a verbal Wakf made by land owner with delivery of the possession of the concerned land as grave yard to the villagers (Plaintiffs) more than 100 years ago as proved in evidence can be denied on the ground there was no written Wakf. 7. It appears from the records that the record of the appeal was thereafter, misplaced and could not be traced out and hence reconstructed, after which the appeal was again admitted for hearing vide order dated 16th May, 2005, on the following 3 (three) substantial questions of law:- (1) Whether the learned Court below erred in holding that the suit was barred under section 154 of Assam Land and Revenue Regulation, 1886? (2) Whether the learned Court below erred in dismissing the suit of the appellants/plaintiffs for non substitution of the legal heirs of the defendant No. 1, though the suit was filed in the representative capacity? (3) Whether the learned Court below erred in acting on the mirasdari chitta Ex. C issued in favour of the defendants while rejecting the plaintiffs claim for title in the suit land? 8. I have heard Mr. M.H. Rajbarbhuiyan, learned counsel for the appellants/plaintiffs and Mr. B.R. Dey, learned senior counsel appearing for the respondents/defendants. 9. Mr. Rajbarbhuiyan, learned counsel appearing for the appellants/plaintiffs has submitted that in the present appeal, the substantial question of law Nos. 1, 2 and 3 framed on 2nd September, 2003 are involved and not the substantial question of law No. 1 framed vide order dated 16th May, 2005, as the appellate Court has held that the appellants' suit is not barred under Section 154 of the 1886 Regulation. It has also been submitted that the substantial question of law Nos. 2 and 3 framed vide order dated 16th May, 2005 are similar to the substantial question of law Nos. 1 and 2 framed vide order dated 2nd September, 2003. 10. Mr. It has also been submitted that the substantial question of law Nos. 2 and 3 framed vide order dated 16th May, 2005 are similar to the substantial question of law Nos. 1 and 2 framed vide order dated 2nd September, 2003. 10. Mr. Rajbarbhuiyan, learned counsel referring to the impugned judgment and order dated 15th May, 2003 passed by the first appellate Court, has submitted that though the appellants, in view of the provision contained in Section 105 CPC, has challenged the order dated 27th April, 1998 passed by the trial Court refusing the prayer for substitution of the legal heirs of the defendant No. 1, the first appellate Court did not go into the legality and validity of the said order, while holding that the entire suit of the plaintiff has abated because of non bringing the legal heirs of the defendant No. 1 on record. The learned counsel referring to the order dated 27th April, 1998 also submits that it being evident therefrom, that the application for substitution was filed on 15th November, 1997 on being informed by the learned counsel for the defendant No. 1 on 15th September, 1997 about his death on 22nd July, 1997, the trial Court ought not to have refused to allow the prayer for substitution, on the ground that no application seeking condonation of delay in filing such application for substitution has been filed. 11. The learned counsel further submits that both the Courts below have dismissed the suit also on the basis of Mirasdari Chitha (Exhibit-C) by holding that the suit land belongs to the defendants, in the absence of any other proof relating to the title and such document being not the document for title, the Courts below ought not to have dismissed the suit of the plaintiffs by holding that the defendants had the title. 12. Mr. Dey, learned senior counsel appearing for the respondents/defendants, on the other hand, supporting the judgments and decrees passed by the Courts below has submitted that in the absence of any application seeking condonation of delay in filing the application for substitution of the legal heirs of the defendant No. 1, the trial Court has rightly passed the order dated 27th April, 1998 refusing the prayer for substitution of the legal heirs of the defendant No. 1 and consequently dismissed the suit as against the defendant No. 1 as abated. It has also been submitted that consequently both the Courts below have also rightly dismissed the suit of the plaintiff in its entirety, even though the suit was instituted in a representative capacity. It has also been submitted that the plaintiff having instituted the suit, the burden lies on them to prove that a valid Wakf was created, which the plaintiffs having failed to do, are not entitled to the reliefs claimed in the suit and hence, no illegality has been committed in dismissing the suit of the plaintiffs by the Courts below. Mr. Dey further submits that in the absence of any proof of title of the plaintiffs over the suit property, the Courts below have rightly took into consideration the Mirasdari Chitha (Exhibit-C). 13. I have considered the submissions advanced by the learned counsel appearing for the parties and also perused the records including the impugned judgments and decrees passed by both the Courts below, apart from the order dated 27th April, 1998 passed by the trial Court refusing the prayer for substitution as well as the petition seeking substitution of the legal heirs of the defendant No. 1. 14. The plaintiffs filed Petition No. 363/21 on 15th November, 1997 praying for substitution of the legal heirs of the defendant No. 1, on whom the right to sue survives, contending inter alia that they came to know about the death of the defendant No. 1 on 15th September, 1997, on being informed by the learned counsel earlier representing the defendant No. 1. The said prayer has been objected to by the other defendants by filing objection contending inter alia that the application having not been filed within time, i.e. 90 (ninety) days from the date of death of the defendant No. 1, the prayer for substitution cannot be allowed, more so when the application seeking condonation of delay in filing such application has not been filed. The trial Court, accepting the objection filed by the defendants, passed the order dated 27th April, 1998 refusing the prayer for substitution. 15. The trial Court, accepting the objection filed by the defendants, passed the order dated 27th April, 1998 refusing the prayer for substitution. 15. It is evident from the contents of the petition filed by the plaintiffs for substitution as well as the order dated 27th April, 1998 passed thereon that the learned counsel, who earlier represented the defendant No. 1, for the first time, informed the Court on 15th September, 1997 about the death of the defendant No. 1 on 22nd July, 1997. Such information has been furnished in terms of the provision contained in Order 22 Rule 10A of the CPC, as the contract between the advocate and the deceased party deemed to subsist till such information is furnished. It also appears from the said order that the application for substitution was filed on 15th November, 1997, i.e. within 90 (ninety) days from the date of knowledge of the death of the defendant No. 1, i.e. with effect from 15th September, 1997. The plaintiffs have narrated the said facts in the application filed for substitution. The trial Court, therefore, ought not to have rejected the prayer for substitution on the ground that no application seeking condonation of delay has been filed when entire circumstances explaining the reason why the application was filed on 15th November, 1997 has been narrated in the aforesaid application filed for substitution. The application filed by the plaintiffs also cannot be termed as barred by time, the same having been filed within 90 (ninety) days from the date of knowledge. 16. Sub-Section (1) of Section 105 CPC provides that save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. The order dated 27th April, 1998 being not an appealable order and as the suit has been decided based on the aforesaid order dated 27th April, 1998, apart from other grounds, the plaintiffs can challenge the said order in the first appeal filed against the decree passed, the said order having affected the decision of the case, which though the plaintiffs did, the first appellate Court did not go into the legality and validity of the order dated 27th April, 1998. 17. In view of what has been discussed above, I am of the view that the order dated 27th April, 1998 cannot be sustained in law and hence, it is set aside. 18. It also appears from the judgment passed by the first appellate Court that the plaintiffs' appeal has also been dismissed placing reliance on the Exhibit-C, Mirasdari Chitha, i.e. revenue records. It is a settled position of law that no decree for right, title and interest can be decreed solely on the basis of mutation of the name in the revenue records in the absence of proof of title. 19. In view of the above, the judgments and decrees passed by both the Courts below are set aside. The trial Court is directed to carry out necessary correction in the cause title of the suit, as the prayer for substitution has been allowed by setting aside the order dated 27th April, 1998. The trial Court is also directed to issue notice to the substituted heirs of the defendant No. 1 and to decide the suit in accordance with law. The suit has to be remanded to the trial Court, as the order dated 27th April, 1998 was passed before recording the evidence of the parties. 20. The parties, other than the legal heirs of the defendant No. 1, are directed to appear before the trial Court on 18th December, 2013. 21. The Registry is directed to send down the records forthwith, so as to reach the trial Court before the date fixed by this Court for appearance of the parties. The appeal is accordingly allowed to the extent indicated above. No costs. Case Remanded