JUDGMENT Banerji, J.
1. The suit out of which this appeal has arisen was brought by two plaintiffs, Kedar Pandey and Shimbu Pandey, for a declaration that the trees standing on plots Nos. 446 and 573 were in the possession of the defendant subject to the proprietary rights of the plaintiffs, that the defendant was liable to deliver to the plaintiffs half of the produce as zemindari due and that the defendant had no proprietary right in the trees, that he had only the right of a person who had planted them, and that the plaintiffs were entitled to receive half of the fruit and timber from the defendant. Trees standing on a third plot were also included in the claim but so far as those trees are concerned, the claim was withdrawn in the Court of first instance.
2. It appears that the parties or their pre-decessors-in-title were co-sharers in the village in which the trees exist. A partition took place between them in the year 1857 under which two mahals were formed, one of 14 annas and the other of 2 annas. The plaintiffs are proprietors of the 14 annas mahal and the defendant owns a share in the 2-annas mahal. The two plots in question appertain to the plaintiffs' 14-annas mahal.
3. It has been found by the Court below that the trees were planted by the defendant's father 24 or 25 years ago. The defendant contends that he is the owner of the trees, that he never delivered any share of the produce of the trees to the plaintiffs and that. the claim of the plaintiffs was time-barred. The lower Appellate Court holds that it must be presumed that the trees were planted by the defendant or his predecessor with the permission of the zemindar of the 14-annas mahal, and that they were planted subject to the customary right of the zemindars to receive one-half of the produce. This right is recognized in the wajib-ul-arz of the village. The Court was further of opinion that mere non-payment of rent or non-delivery of dues for a number of years unless coupled with a denial of the plaintiffs' right could not extinguish such right, and that the claim was not time-barred. It accordingly made a decree declaring that the plaintiffs are the zemindars of the trees and entitled to receive from the defendants a half share of the produce.
4. The defendant has preferred this appeal and the first contention urged on his behalf by his learned Counsel is that the matter is res iudicata in consequence of a decision of the Revenue Court passed on the 27th of March 1907. As to this it appears that a suit was brought by the plaintiffs against the defendant in the Revenue Court to recover the plaintiffs' share of the produce of the trees for certain years. In that case the Revenue Court held that the plaintiffs were not entitled to the amount claimed inasmuch as the defendant also was a zemindar and not a tenant. In that suit, there was no question of proprietary title to the land and no decision was given by the Revenue Court in respect of such title. Therefore, the decision relied on cannot operate as res judicata.
5. In view of the finding of the Court below that the trees in question were planted after the partition of 1857, it must be presumed that they were so planted by the defendant not as proprietor (because the defendant was not a proprietor in the 14-annas mahal) but as a person who did so with the leave and license of the zemindar. Therefore, under the terms of the wajib-ul-arz, the defendant is liable to deliver to the plaintiffs the customary dues of the zemindars, namely, one-half of the produce. The Court below has rightly held that mere non-payment or non-delivery of such dues is not sufficient to extinguish the title of the zemindar. It has been found that this non-payment was not Coupled with a denial of right and that the plaintiffs' right was not denied until the institution of the suit in which the decision of the Revenue Court referred to above was passed. The decree of the Court below is, therefore, right.
6. Lastly, it is contended on behalf of the appellant that Shimbhu Pandey, one of the plaintiffs' to the suit, had died before the decision of the appeal by the lower Appellate Court, and that that Court ought to have declared the appeal before it to have abated so far as Shimbhu Pandey was concerned. It does not appear that it was ever brought to the notice of the Court below that Shimbhu Pandey was dead. The representatives of Shimbhu Pandey have not been made parties to this appeal under Chapter II, Rule 3 of the rules of this Court, in fact Shimbhu Pandey himself who was at the time dead was described in the memorandum of appeal as a respondent. In the absence of the legal representatives of Shimbhu Pandey, it cannot, be held in this appeal that he died before the decision of the appeal. It may be that he died between the date of the hearing of the appeal and that of the delivery of judgment. In that case, under Order XXII, Rule 6, there would be no abatement of the appeal. It is too late, therefore, for the appellant to contend that the appeal in the Court below abated.
7. The result is that I dismiss the appeal with costs.