B. Dayal, J.
1. This appeal has been referred to this Bench by a learned Single Judge of this Court which arises out of a suit filed by the five plaintiffs for ejectment, and possession over a grove alleging that the defendants were trespassers. The suit was contested by the defendants on the ground that the plot was not a grove of the plaintiffs and the plaintiffs, therefore, had no right in it. The trial court dismissed the suit with costs.
Out of the five plaintiffs, only one Ranbir Singh filed an appeal in the court below which was heard by the Temporary Civil Judge of Orai. The court below took the view that since the suit had been filed by five of the plaintiffs, and their interest was not separable, only one of the plaintiffs was incompetent to file an appeal and dismissed the appeal on that ground.
Ranbir Singh has consequently filed this Second Appeal and the contention of the learned counsel for the appellant is that the court below was wrong in dismissing the appeal on that preliminary ground. The contention is that it is not necessary to implead all the plaintiffs in appeal like this and the court has ample power under Order 41, Rule 4 C. P. C. to reverse the decree in favour of all the plaintiffs.
2. Before entering upon the discussion of legal questions, learned counsel for the respondents raised a question of interpretation of the plaint. His contention was that although throughout the body of the plaint, the claim of all the five plaintiffs was that they were owners of the grove but in the relief sought the first prayer is that possession of the property be granted in favour of the plaintiff (muddai). The argument of the learned counsel is that in this plaint there was no joint relief claimed in favour of all the plaintiffs,
We are unable to agree with this contention. This plaint was filed on a printed paper. In the body of the plaint at several places the singular word 'muddai' has been cut out and in its place plural word 'muddaiyan' has been substituted. It appears that in the relief it has been left out by some mistake. There is no allegation in the body of the plaint that only one of the plaintiffs, and which of them, is entitled to possession of the whole property. We are, therefore, satisfied that the statement of the case by the lower appellate court that all the plaintiffs claimed to be joint owners and claimed possession of the plot is correct.
3. The next contention is an important point in the case on account of which the case has been referred to a Division Bench. The learned single Judge thought that there was a conflict of opinion in this Court and in the other High Courts on the point whether an appellate court can grant a decree in favour of all the plaintiffs or defendants even though all the plaintiffs or defendants had not appealed and non-appealing plaintiffs or defendants had not been made parties to the appeal.
Before the learned single Judge, two cases were relied upon on behalf of the appellant, Mahamangal Rai v. Kishun Kandu : AIR1927All311 and Parmeshri Kunwar v. Dhuman Kunwar : AIR1929All393 . Both these are single Judge decisions of this Court and it has been clearly held in these cases that the words of Order 41, Rule 4 C. P. C. are quite clear and they authorise the appellate ,court to pass a decree in favour of all the plaintiffs or defendants even though some of them have not appealed and are not parties to the appeal.
As against this Balkaran v. Malik Namdar, AIR 1924 All. 873 and the case of Nanak v. Ahmad Ali, AIR 1946 Lah 399 (FB), wore cited for the proposition that it was essential that the non-appealing plaintiffs or defendants were also made parties and unless they were before the court the appellate court was powerless to pass a decree in their favour,
4. Balkaran Lal's case, AIR 1924 All 873, mentioned above, is entirely distinguishable on facts. In that case, the suit had been filed by three plaintiffs. They claimed to recover the property on the ground that a decree passed in favour of Malik Namdar in the year 1912 was not binding on them and the property being joint family property could not be mortgaged. The trial court held that there was legal necessity and dismissed the suit. Only one of the plaintiffs Kamla Pd. filed art appeal. The appellate court dismissed this appeal on two grounds. The first ground was that Kamla Pd. was bound by the decree of 1912 and therefore the suit was rightly dismissed and secondly that he was not entitled to file the appeal alone. After the dismissal of this appeal a Second Appeal in this Court was filed by Balkaran Lat and others so that Balkaran LaI who had not filed the appeal in the court below filed a Second Appeal in the High Court. Thus on facts the observations regarding the power of the court under Order 41, Rule 4 C. P. C. were mere obiter as the appeal was dismissed on facts also, the decree being binding on Kamla Pd. In the second place the Second Appeal had been filed by Balkaran Lal who had not appealed in the court below and the Second Appeal was, therefore, not maintainable on his behalf. The question therefore, which is now under consideration did not really arise in that case.
The other case, AIR 1946 Lah 399, decided by the full Bench of the Lahore High Court also did not decide this point. In that case Ahmad Ali filed a suit for cancellation of a sale deed in favour of Nanak and Khairuddin, defendants Nos. 2 and 3. This suit was dismissed by the trial court but was decreed by the first appellate court. Against that decree, both Nanak and Khairuddin filed a Second Appeal. During the pendency of the appeal one of the appellants Nanak died and his legal representatives were not brought on the record. At the time of bearing, a preliminary objection was taken that one of the appellants having died, the appeal had abated and could not be heard at the instance of the surviving appellants. In reply it was contended that the court had ample power under Order 41, Rule 4 of the C. P. C. to hear the appeal and decide in favour of the heirs of Nanak also and therefore there was no reason for abating the whole appeal. The question, therefore, that was relevant in that case was whether an appeal after abatement against one of the appellants could still be heard and decided in favour of the heirs of that appellant. Mr. Justice Achhru Ram, who delivered the leading judgment observed as follows:
'After hearing the learned counsel for the parties we came to the conclusion that even apart from Order 41 Rule 4, C. P. C. the abatement of Nanak's appeal does not make Khairu Din's appeal incompetent and that the latter's appeal can still proceed. Under the circumstances we did not consider it necessary to hear the parties at any length on the question as to the applicability of Order 41 Rule 4 C. P. C., or to examine the various conflicting decisions given by the different High Courts on this muchvexed question. I wish, however, to observe that, without pronouncing any final opinion on the question whether the previsions of Order 41, Rule 4 C. P. C. should control those of Order 22, Rule 3, C. P. C., on which there is undoubtedly a conflict of opinion even in this Court, it would not be possible to apply Order 41 Rule 4 in, the present case.'
Thus the point of applicability of Order 41, Rule 4 apart, from any complication of abatement was not considered by the Full Bench in the Lahore case.
In a case where one of the appellants had died during the pendency of the appeal and the appeal to that extent has abated, the position is quite different. The effect of abatement is that the appeal is dismissed so far as that party is concerned and having dismissed the appeal against that party, the court cannot at the instance of another party decide the appeal in favour of the party whose appeal has been dismissed and cannot thereby override the provisions of Order 22, Rule 3 C. P. C.
This question came up for consideration in a Full Bench case before this Court in Baijnath v. Ram Bharose : AIR1953All565 . In this case the contention was that even though one of the parties to the appeal had died yet the appeal could be decided in favour of the heirs of that party although they were not on record. This contention was repelled and the following observation is apposite to the point.
'From the very wordings of Order XLI, Rule 4 it wouldseem that this rule was intended to be applicable to onlysuch cases where all the plaintiffs or defendants werealive and only one more of them had cared to appealfrom the decree. To go further than this would be tohold that Order XLI either over-rides or creates an exceptionto Order XXII, Rules 3 and 11 and authorises the Court ineffect to set aside an abatement and to reverse or varya decree which has become final against the deceasedappellant.'
Thus the Lahore case is also entirely distinguishable. InBaijnath's case, 1953 All LJ 330 : (AIR 1953 All 5651(FB), above, it was also observed:
'Wide as the terms of Order XLI, Rule 4 are, and important as it is for courts not to cut down the vast discretion with which it vests them, it strikes us that the power of the appellate court under this section is restricted to reversing or varying a decree in favour of only those who are plaintiffs, or defendants, as the case may be.'
In view of this observation in this Full Bench case we think that there is no force in the contention that the appeal by one of the plaintiffs or the defendants alone was incompetent in the court below. There is no allegation that any of the parties had died. The cases relied upon by the counsel for the respondents as stated above, were distinguishable and we do not see sufficient reason to differ from the decision of Mahamangal Rai's case : AIR1927All311 , quoted above.
5. The appeal is accordingly allowed and the caseis sent back to the lower appellate court for decidingthe same on the merits. Costs of the appeal shall becosts in the suit.