1. A preliminary objection has been taken on behalf of the respondents that this appeal has abated as a whole. This appeal arises out of a suit brought by two plaintiffs, Sheo Din and Debi, framed as a redemption suit. The Court of first instance decreed the claim holding that the mortgage had been established. An appeal was preferred by the defendants and there was a cross appeal by the plaintiffs. Both these appeals have been dismissed. The learned Judge has come to the conclusion that the mortgage has not been satisfactorily proved by the plaintiffs, but he has repelled the contention of the defendants that they have been in adverse possession of this property. He has come to the conclusion that the defendants' possession has been permissive and that they are licensees. He was inclined to allow the plaintiffs a decree for possession without any consideration as to the payment of the sum offered by them. But as in their appeal they had not challenged that part of the decree he did not try to disturb it. The result was that he dismissed both the appeals.

2. The defendants preferred an appeal to this Court impleading both the plaintiffs. During the pendency of the appeal Sheo Din, respondent, died and no application to bring his legal representatives on the record was made within the time allowed by law. It is admitted before us that Sheo Din and Debi did not form members of a joint Hindu family with rights of survivorship inter se.

3. There can be no doubt that the appeal must abate as against Sheo Din, deceased, and his legal heirs. The question is whether the appeal must be deemed to have abated as regards the respondent Debi also or not.

4. Under the old Code of Civil Procedure no doubt in a number of cases it was held that where a joint decree has been passed and the defendant appeals against the plaintiffs, but fails to implead one of them or to bring his heirs on the record within the time allowed by law, the whole appeal abates. The words of the old Section 368 were wide enough to cover this position. Under the new Code some amendments have been introduced which require consideration. In the first place in Order 1, Rule 9 it is specifically provided that no suit shall be defeated by reason of mis-joindor or nonjoinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interest of the parties before it. Then in Order 22, Rule 4, sub-Cl. 3, it is provided that if no application to bring the heir of the deceased defendant has been made in time the suit shall abate as against the deceased defendant. We have a similar provision in Rule 3, sub Cl, 2, when a plaintiff dies. These rules have been made applicable to appeals. On the face of these rules it is clear that when a respondent dies and his heir is not brought on the record within time then the appeal abates as against the deceased.

5. Of course there may sometimes be cases where, in the absence of one party to the case, the appellate Court finds itself helpless to decide the matter in controversy. Cases of this kind may arise in partition suits and suits for dissolution of partnerships where it may be said that in the absence of one of the parties jointly interested a partition or dissolution cannot be made. The same principle has been extended to pre-emption in the case of Inamuddin v. Sadarath Rai (1910) 32 All 301, which was followed with some difference of opinion in the case of Wajid Ali Khan v. Puran Singh AIR 1925 All 108; but the circumstances of a pre-emption suit are peculiar and do not necessarily apply to a suit for recovery of possession either on payment of money or without any such condition.

6. When a suit for joint possession of property is brought by more than one plaintiff and a decree is obtained in the first Court it is open to the defendant to challenge the right of any one of the plaintiffs although he may not be in a position to challenge the rights of the other co-plaintiffs. It is therefore conceivable that be may choose to appeal only as against one of such claimants and not substantially as against the others. He may have good reason not to appeal against some as he may have compromised the dispute with them or it may be his interest to get rid of some of the claimants if he cannot get rid of all. In any case very often an appellate Court may uphold the decree in favour of some of the plaintiffs and may dismiss the claim of the other plaintiffs. It, therefore, seems to me that in a case for joint possession of property brought by a number of plaintiffs it is possible to dismiss the claim of some and uphold the decree in favour of the others. The decree is certainly a joint decree, but the rights of claimants are distinct and can be considered individually and disposed of separately. In this view of the matter, there being no express provision directing that the whole appeal should abate, it seems difficult now to hold that the present appellant cannot ask this Court to dismiss the claim of Debi even though he may not be in a position to challenge the decree in favour of the deceased Sheo Din. The only case under the present Code where in a suit for joint possession the principle of the integrity of a joint decree has been applied which has been brought to our notice is the case of Tej Narain Sahu v. Dal Ram Sahu AIR 1922 Patna 606. The learned Judges of the Patna High Court did not consider the effect of the amendments in the new Code, but merely followed a previous ruling of the Calcutta High Court reported in Baser Sheikh v. Fazle Karim Biswas AIR 1915 Cal 786. In this latter case also the amendments were not considered, but two previous cases under the old Code were simply followed. It is unnecessary to consider the case where a joint money decree has been passed in favour of several plaintiffs. A case like that arose before the Lahore High Court in Sadari Lal v. Ram Lal AIR 1920 Lah 67.

7. Even if this appeal were allowed the result would simply be that Debi would be disentitled from executing his decree and his right thereunder would be extinguished. This may not necessarily affect Sheo Din and his heirs who may be allowed to execute the whole decree or at any rate a part of the decree.

8. I would, therefore, overrule the preliminary objection.

9. Coming to the merits of the appeal, the main point urged before us is that the lower appellate Court has made out a new case for the plaintiffs in holding that the defendants are holding possession as mere licensees. The plaintiffs alleged themselves to be the original proprietors. The defendants never disputed the original title of the plaintiffs. The plaintiffs alleged that the defendants were put in possession by their predecessors as mortgagees. The defendants denied the very existence of the mortgage and set up adverse possession. The Court of first instance had found the existence of title in favour of the plaintiffs and had not accepted the plea of adverse possession inasmuch as it found them to be holding possession as mortgagees.

10. On appeal the learned Judge has found that the mortgage is not proved. He has found that the defendants have not proved their adverse possession. He has further found that the defendants' predecessor was put in possession with the leave of the owner and that there are written admissions available which destroy the plea of adverse possession. It is obvious that the decree has been upheld on the main ground that the title rests with the plaintiffs and that the defendants have not established their adverse possession. It was not really a new case set up for the first time. The appeal accordingly has no force and I would dismiss it with costs.

Mukerji, J.

11. There were two respondents in this appeal, Sheo Din and Debi. They brought the suit out of which this appeal has arisen for redemption on the allegation that an ancestor of their vendor mortgaged the property in suit to an ancestor of the defendants, who are the appellants before us. They alleged that the mortgage money was a sum of Rs. 199 and they offered to pay the same.

12. The suit succeeded in its entirety in the Court of first instance which found that there subsisted a mortgage. There were two appeals, one by the plaintiff, on the question of costs; and the other by the defendants, who disputed the right of redemption, on the ground that there was no mortgage at all. The defendants had also set up a title in themselves by adverse possession. The learned District Judge found that the evidence that was adduced to prove the mortgage was not admissible, because, if a mortgage subsisted, it must have been created by a registered document. No registered document was produced. A certain statement made in the year 1904 by an ancestor of the defendants was put into evidence. There he had stated that he was holding as a mortgagee and he had also stated the terms on which he held. The learned Judge was of opinion that the admission of Ganga Prasad-for such was the name of the man-was not good enough for establishing a mortgage, though it was good enough to show that the ancestor of the defendants came upon the land with the permission and leave of the plaintiff's predecessor-in-title. The learned Judge remarked that, in the circumstances, the plaintiffs were entitled to succeed on their title and it was fortunate for the defendants that they had got an offer of Rs. 199.

13. In this Court the defendants appealed and the main contention of the learned Counsel for the appellants is that the learned Judge has changed the case set up by the plaintiffs and this he was not entitled to do.

14. A preliminary objection has been taken that the whole of the appeal has abated. It appears that the respondent, Sheo Din, died more than 90 days ago and no heir of his was brought on the record. It is urged on behalf of the respondent Debi that the whole appeal abates because it abates against Sheo Din.

15. Before I come to consider the appeal on the merits, it is necessary to dispose of the preliminary objection. My view on the question of abatement is set forth in the case of Wajid Ali Khan v. Puran Singh AIR 1925 All 108. In that case my opinion was not accepted by the majority of the Judges who heard the case. The decision of the case, however, was influenced by the fact that the case involved a pre-emption decree and the question now before us is whether the principle therein enunciated by the majority of the Judges who heard the appeal should be followed in this case. The majority of Judges did not say anything by which they may have meant to lay down anything like an universal rule. I therefore agree with my learned brother that the principle there laid down cannot be and should not be extended to the case like the present one. Here two persons who are independent of each other purchased a mortgagor's interest and instituted a suit for redemption. It would not affect Sheo Din if the suit of Debi be dismissed at the instance of the present appellants. A very similar case arose before the Bombay High Court in the case of Shankerbhai Manorbhai Patal v. Motilal Ramdas Shah AIR 1925 Bom 122. The Acting Chief Justice Shah remarked:

It is enough for our present purpose to point out that if the defendants succeed it would place them in a more advantageous position in so far as they would have then to satisfy plaintiff 2 only with reference to the decree and not Plaintiff 1.

16. In the case before the Bombay High Court there were two plaintiffs who were tenants-in-common and they had succeeded in their suit for ejectment. On an appeal by the defendants one of the plaintiffs died, but his legal representative was not brought on the record. Then the question arose whether the whole appeal should abate or a part. Both the Acting Chief Justice and Fawcett, J., held that the appeal ought to be heard so far as the surviving respondent was concerned. I am therefore of opinion that the law laid down by the majority of the Judges in the case of Wajid Ali Khan v. Puran Singh AIR 1925 All 108 is not of universal application and should not apply to this case. The appeal should be declared to have abated as against Sheo Din only.

17. Coming to the merits of the case, it appears to me that the appeal has no force. The case is just like those that frequently arise when an occupancy tenant mortgages his tenancy and then claims to redeem it. The mortgage is illegal. He is allowed to recover his property but on payment. In this case there was a mortgage, but there being no registered mortgage deed it was not operative. The title was with the plaintiffs, and the defendants came upon the property with the permission of the plaintiffs' predecessor-in-title. That being the case, the learned Judge was right in holding that the plaintiffs were entitled to succeed. The learned Judge thought that the defendants were fortunate enough to get a sum of money. But this is hardly correct. The defendants were entitled, in equity, to have the money back which they had advanced in consideration of the property. The appeal therefore must fail.

18. We declare that the appeal, as against Sheo Din, has abated and we dismiss the rest of the appeal. The appellants must pay the costs of the respondent Dabi in this Court including counsel's fees on the higher scale.