The Judgment of the Court was delivered by
Mitter, J.:— This is an appeal under S. 15, Letters Patent, from a judgment of my learned brother Patterson, J., who modified the decree of the lower appellate Court and restored the decree of the Munsif. Two points have been raised before us in respect of the appeal, which has been preferred on behalf of the plaintiffs. It is first contended that by reason of certain events which happened, the appeal before Patterson, J., should have been dismissed on the preliminary ground that as one of the defendant-appellants had died during the pendency of the appel in this Court and his heirs were not brought on the record, and the appeal having abated so far as the said defendant was concerned, the whole appeal had abated. This contention did not prevail with Patterson, J. and he held that this preliminary objection must be overruled, and we are of opinion that the learned Judge was-right in him conclusion on this part of the case for reasons to be detailed presently.
2. The suit out of which this appeal arose, was brought by the plaintiffs now appellants before us, for a declaration of their title to certain lands and for recovery of khas possession in respect of the same.
3. The first court granted a declaration of the plaintiffs' title to a fractional share in the lands in suit but dismissed the plaintiffs' suit for khas-possession. On appeal to the lower appellate Court it set aside that decision and decreed the plaintiffs' suit in full.
4. It appears that defendant 1 Fedu-Sheikh died during the pendency of the appeal in the lower appellate Court and-his two sons Asiruddi Sheikh and Mobarak Sheikh were substituted as his heirs in the record of the appeal in the Court below. The appeal to this Court was filed on behalf of both Asiruddi and Mobarak, Mobarak died during the pendency of the appeal to this Court and his heirs were not brought on the record within the time allowed by law. The result of that was that the appeal abated automatically so far as the appellant Mobarak was concerned. It is stated that the effect of this abatement of the appeal so far as Mobarak was concerned, is that the whole appeal had abated. The preliminary objection is based on this ground and it is said that the appeal to this Court was incompetent and should have been dismissed apart from any question on the merits. Patterson, J., has negatived this objection and has relied on the provisions of O. 41, R. 4 of the CPC. We are of opinion that this case is governed by the provisions of O. 41, R. 4, which runs as follows:
“Where there are more plaintiffs or more defendants than one in a suit and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and therefore the appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be.”
5. The suit of the present plaintiffs for ejectment was resisted by the two sons of the original defendant 1, on common grounds, and it seems to us that the present rule enables one of the two heirs of the defendant, to maintain the appeal from the whole decree, and it is competent to the appellate Court to reverse or vary the decree in favour of all the plaintiffs or all the defendants as the case may be, although one of the defendants or one of the defendant's heirs;did not join in the appeal. It is contended that the rule only provides for a case where the appeal has been preferred by one of the defendants in which case although the other defendants had not joined in the appeal, he is entitled to get the benefit of the judgment. We are of opinion that would be putting a limited construction to the provisions of R. 4, O. 41.
6. The view we take, has been taken by Mukerji, J., in an unreported decision of this Court. It was cited before the learned Judge of this Court; Second Appeal No. 1961 for 19301. This view receives support also of a decision in the case of 40 Mad 8462. Sir John Wallis, at p. 868 of the report, observes as follows:
“The twentieth and the twenty-second defendants died after the appeal had been preferred and their representatives have not been brought on the record. It has been argued that as the appeal has abated as regards these appellants the decree of the lower Court cannot be modified as far as their interests are concerned. The grounds of appeal in which the appellants have succeeded are common to all the appellants and we think the terms of O. 41, R. 4 of the CPC, at wide enough to cover this case, 27 Bom 2843, and enable this Court to set aside the decree as regards the whole of the plaintiffs' claim and not merely in respect of the interest of those appellants whose appeals have not abated. Any other conclusion would lead to incongruity in judicial decisions on the same facts: vide 30 Mad 4704”
7. Reliance however has been placed on a decision of this Court in the case of 1928 Cal 1845. The learned Judges Gumming, and Mallik, JJ., delivered separate judgments in that case. It has been pointed out by Patterson, J., that there are various observations which appear to be in conflict with the observations made by him. Mallik, J., has laid down that the true test in a case of this kind, is, whether it can be heard in the absence of the appellant who is dead, whether an appeal can be heard in the absence of one of the appellants, will depend on the nature of the suit and the decree made. The present suit is a suit for ejectment and the defendant in appeal can contend on grounds common to the other defendants that the whole suit should be dismissed. We do not see any reason to hold why the provisions of O. 41, R. 4 should not cover a case of this kind. We are in entire agreement with the case of the Madras High Court in which judgment was delivered by Sir John Wallis.
8. The second ground relates to the merits of the case. Patterson, J. has agreed with the lower appellate Court so far as the question of plaintiff's title is concerned. He holds that the plaintiffs have established their title to the entire land claimed in the present suit but he has disagreed with the lower appellate Court and has held that as the plaintiffs were not in possession within twelve years of the date of the institution of the present suit, the suit was barred by limitation in respect to the claim for khas possession. (His Lordship then discussed the evidence and proceeded). In our opinion therefore it seems to us that the lower appellate Court was right in the view which it has taken that the plaintiffs were in possession of the suit lands, for at least three years next before the present suit, through their tenant Arjun. This again is a finding of fact arrived at by the lower appellate Court, and it is not permissible to this Court to interfere with it in second appeal.
9. For these reasons, we are of opinion that the judgment of Patterson, J., must be set aside and that of the first appellate Court restored. It is unfortunate that the respondents in this appeal have not appeared before us, but Mr. Roy Chowdhury and Mr. Chakravarty have very fairly placed the case before us. The appellants are entitled to their costs both before us and before Patterson, J.
McNair, J.:— I agree.
G.B
10. Appeal allowed.